Criminal Procedure

Published on: April 11, 2012

Court Decides if Defendant is Guilty of Criminal Mischief

by Stephen Bilkis

The accused defendant is charged with assaulting his former girlfriend in the presence of their three children. The trial testimony established that during the assault, the victim attempted to call 911 for police assistance (using a land-line telephone) and she made a very brief initial contact, but was then immediately thwarted by defendant, who bound the victim’s wrists with the telephone cord and then slammed the telephone on the victim’s hands/fingers as she tried again to dial 911. At some point, however, during the incident the abused victim was able to complete a 911 call using the same telephone.

A New York Criminal Lawyer said the jury acquitted defendant of assault in the third degree but convicted him of attempted assault in the third degree, three counts of endangering the welfare of a child and criminal mischief in the fourth degree; the last one is the subject of defendant’s instant motion.

The primordial issue in is whether or not the evidence adduced at trial was legally sufficient to establish the necessary elements of criminal mischief in the fourth degree.

Published on: April 11, 2012

Defendant Charged with Marijuana Possession

by Stephen Bilkis

Recently, a good deal of attention has been given to the legalization or decriminalization of marijuana. Some states have legalized medicinal marijuana use. Some states have decriminalized the private use or possession of less than one ounce. In New York City, it is still illegal to use, possess, or purchase marijuana. While drug possession is still a crime, other less obvious issues surrounding marijuana are being played out in courts all over the United States.

A New York Criminal Lawyer says that people believe that is they are good parents and take good care of their children that no one can take them away. What they do not realize is that sometimes, even good parents are scrutinized by a judicial system that has the power to remove their children from them. This is a terrifying situation. No one wants to believe that the state would come in and take away their children. That is something that happens to other people, bad people, not to the average parent. That image of people who have to fight the system to keep their children is not accurate. Sometimes, there are people who are lousy parents. People can be cruel and people can be clueless when it comes to the welfare of their children. The laws of the state of New York clearly detail that if a parent misuses alcohol or drugs to the extent that it places their children in in actual or imminent danger of impairment to the physical, mental, or emotional condition of the child. The Family Court Act § 1046 also states that there must be a showing of a threshold of serious and ongoing substance abuse. The object of this law is to protect children from serious harm or potential harm. It was not designed to punish parents for behaving in an undesirable manner.

It is possible, that a parent who uses marijuana only once can have their children removed. A New York Criminal Lawyer said it seems unconscionable that the state would take away a person’s children for testing positive for marijuana on one occasion, but it has happened. In fact, one such case was decided in Kings County Family Court in Kings County, New York on January 26, 2012. The incident surrounded the petition from the Administration for Children’s Services to find a mother guilty of child neglect because on the date of her child’s birth, she and the child tested positive for marijuana. The toxicology report was not specific as to when the marijuana had been consumed, if the mother had endangered her child by consuming it, or if the mother had even become intoxicated at the time that the drug entered her body. Interestingly enough, this case brings up the question of what would happen if the drug had entered the mother’s body through second hand smoke. For instance, the mother was passing through a closed in area where other people were smoking marijuana. It could conceivably enter her body in that fashion. She may or may not feel any effects of the drug, but she would probably still test positive on a toxicology report for the drug. That question will have to be answered in a different court case.

Published on: April 11, 2012

Court Rules on Divorce Admist Domestic Violence Allegations

by Stephen Bilkis

Plaintiff (husband) and defendant (wife) were married on 17 July 1997. The parties have two (2) infant children. The above entitled divorce action was filed by plaintiff on 30 June 2005.

Both plaintiff and defendant blame each other for their failed marriage. Both plaintiff and defendant each allege that the other was verbally, emotionally, and physically abusive during the course of the marriage. During the pendency of the herein matter, based on criminal charges pending against both plaintiff and defendant, the physical custody of the infant children was changed by the Court twice. The defendant has had temporary physical custody of the infant children since 15 April 2008.

A New York Criminal Lawyer said that the Court conducted a non-jury trial with respect to the matrimonial action on March and April 2010. Plaintiff called one witness to testify at the trial while defendant called four witnesses. At the request of the Attorney for the Children, the herein Court conducted in-camera interviews of the two (2) infant children.

Published on: April 10, 2012

Court Considers Revocation of Gun License in Domestic Violence Case

by Stephen Bilkis

On June 29, 2006, a man was involved in a domestic dispute with his wife. His wife told the New York Police Officers that during this dispute, her husband punched and kicked her and that she punched and kicked him. Pursuant to New York Law, the officers discovered that the husband had a residence permit for a target pistol. When they collected the firearms in the home, they discovered that the husband was also in possession of two long guns, rifles, for which he did not have a permit. The husband’s pistol license was suspended pending an investigation into the matter.

A New York Criminal Lawyer said that in June 30, 2006, a Temporary Order of Protection was issued in Kings county New York for the wife against the husband and for the husband against the wife. These protection orders were issued following several additional domestic disputes involving this couple. On September 19, 2006, after a heated verbal dispute with his wife in a public restaurant, the husband was arrested. The arrest was eventually voided. However the fact that he had a history of domestic violence and had been in possession of two long guns illegally in his home, his license to have any guns was revoked.

On December 30, 2006, the man requested an administrative hearing in order to repeal the revocation of his gun permit. His argument stemmed from his assertion that his wife had caused the domestic violence incidents and that he had never been notified of a renewal date for his long guns. The husband stated that he had not been aware that he was supposed to notify the police department of any arrests or orders of protection as they related to his possession of guns.

Published on: April 10, 2012

Court Decides Jurisdiction Issue Where Domestic Violence Incident Occured Out of State

by Stephen Bilkis

Often, questions of law arise in family violence situations that are unique because they are involving a domestic situation that is volatile and fluid in nature. Families are rarely stationary. The question of jurisdiction and venue become relevant when a family primarily resides in one state, but encounters a violent episode while out of state visiting relatives or on vacation. The law is expected to draw a line that determines who is responsible for protecting the victim or victims as the case may be. The law in New York has a long history of struggling with this concept.

In 1962, New York had a family court law that stated that the victim of domestic violence would have to have their case heard in the family court. This decision was designed to decriminalize family violence. However, the effect that it had was far from the one intended. Rather than providing additional options for handling abuse and domestic violence, it created a situation where criminals could elude criminal prosecution. In 1977, the state revised this law. This revision stated that the Family Court and the criminal court would have concurrent jurisdiction. In 1978, the law was revised further to include the three day rule. It stated that the victim had three days following an incident to decide if they wanted to pursue the case in either criminal court or family court. A New York Criminal Lawyer said the complainant’s choice of either criminal or family court became final after the three days. These amendments were an attempt to provide more effective relief to victims of domestic violence. The idea was that they would provide more remedies to the victims of domestic assaults. In 1994, the state legislature created the 1994 Act. It eliminated the three-day choice of venue. The 1994 Act allowed true concurrent jurisdiction to exist. There was no longer the chance that an offender could escape criminal punishment if the victim chose to have the case handled by family court. Since it is a true concurrent jurisdictional provision, a victim can proceed in both criminal and civil court at the same time.

In 1999, amended the Family Court Act 812 and the Criminal Procedure Law § 530.11 to enable a complainant to proceed in family court and have the criminal court continue to hear the criminal offense that was involved. This legal amendment was created to clarify the intent of the 1994 Act. It is generally assumed that the legislative history of domestic violence laws in New York demonstrate a desire to expand the jurisdiction of Family Court and strengthen the remedies available to the victims.

Published on: April 9, 2012

Defendant Tries to Manipulate Court System to Intimidate Wife

by Stephen Bilkis

Domestic violence issues are complicated. For many years, it was easier for the American judicial system to simply not deal with it. The political climate has changed and with it, the domestic violence laws have changed. We now understand that domestic violence is about control. Sometimes, an abuser cannot accept that the control over the other person has been removed by the state. In some cases, the aggressor attempts to control the court by manipulating the legal system. This type of behavior offensive to the judges and will turn the judges favor away from that person.

In one case like this, which was heard in the Civil Court of the City of New York, Bronx County on October 1, 2010, the situation began on May 5, 2010. A man filed a petition to the court on June 30, 2010 claiming that his wife had illegally locked him out of their apartment located at 1880 Valentine Avenue in the Bronx. However, neither party appeared in court and the petition was dismissed. On July 12, 2010, the man filed a second petition alleging that his wife had illegally locked him out of the apartment. This time he claimed that the lock out had happened in February of 2010. This time, the wife appeared in court, but the husband did not. The court dismissed the man’s petition again.

A New York Criminal Lawyer said the man filed a third petition to the court. This time he claimed that his wife had illegally locked him out of the apartment on July 16, 2010. In this petition, he stated that he had called the police. When the police arrived, they ordered him to leave. Both parties appeared in court on July 23, 2010 in reference to this petition. At that time, the court was notified that on July 16, 2010, Bronx County Family Court had issued each party a Temporary Order of Protection against the other. The wife’s Protection Order directed the husband to stay away from the wife and the three minor children who live with her at 1880 Valentine Avenue. These orders expressly stated that the husband was excluded from that residence. He was also ordered to stay away from the wife’s place of work and not to have any communication with any of the people who lived in the apartment. This is most certainly why the police ordered the husband to leave when they were called to the apartment. Family Court did order that the father could have visitation with his infant child at a location away from the apartment. At that time, the court order for visitation listed the husband’s address as 1160 Wheeler Avenue in the Bronx. The court determined that Family Court was the best resolution to the dispute and dismissed the petition that the husband had filed.

Published on: April 9, 2012

Court Decides Jurisdiction in Domestic Violence Case

by Stephen Bilkis

The discretion of Family Court in New York to handle incidents that have occurred in other states or even other countries has led to many courtroom discussions. The Family Court laws in New York are clear in that they do not limit jurisdiction to events that simply occur in New York. In these laws, New York Criminal Court has concurrent jurisdiction with New York Family Court. A New York Criminal Lawyer said the deciding factor becomes whether or not the family resides in New York. In a case where the entire family no longer resides in New York, the person who is being served with the New York Family Court Documents must be served in New York. The reason for this division is that if the offender is not in New York, there is no imminent threat of further domestic violence to the family. However, if all parties are in New York long enough for the alternate person to be served, then the threat has continued. If the threat has continued, then jurisdiction relies on New York to protect the family from violence.

On December 21, 1989, a New York family who had moved to Florida had an altercation in Florida. During the altercation, the victim claims that the abuser, her husband, grabbed her by the hair pulling it out, slapped her and threw her onto the back patio of their house. The victim claims that also in Florida on January 16, 1990, the husband beat their six year old son, bruising his back, legs, and buttocks. The victim also claims that during the week of January 21, 1990, that her husband watched as she tried to close a window for the second time. He told her that she will never live to do it a third time.

The victim advised the court in New York that she and her family had moved to Florida in July of 1989. She stated that she had been afraid that if she did not move with him that he would take her children away. On February 1, 1990, shortly after the last incidence of violence, the victim moved back to New York with her children. She was afraid for her safety, so she moved into a shelter in Monroe County. On February 16, 1990, while she was living in the shelter, she was granted a temporary order of protection. It was later extended to April 27, 1990. A Long Island Criminal Lawyer said the husband was served in New York since he has weekly, supervised visitation with the children.

Published on: April 8, 2012

When Should the Law Intervene In Domestic Violence Cases?

by Stephen Bilkis

Few people realize that they can be charged with child abuse or child neglect if they have a fight with someone in front of the child. A New York Criminal Lawyer said that most states currently have statutes that allow parents to be charged with child abuse or neglect if they are involved in a domestic dispute in the presence of the children. This is true, even if the child is not involved in the assault. If one spouse assaults the other, and one or more of their children are in the room with them, the primary aggressor in the assault can be charged with child abuse or neglect. There does not have to be any physical contact between the parent and the child. There does not even have to be any verbal assault of the child to qualify under the law.

Because of this change in the law in recent years, many parents have been charged with child abuse or neglect. In some cases, it is just not appropriate. Every family has disputes at one time or another. The ability of law enforcement to charge a parent with abuse or neglect for arguing with their spouse in the presence of the children is inappropriate. A Brooklyn Criminal Lawyer said many psychologists suggest that allowing children to see their parents disagree and then work out the issue together is important to teach children how to handle conflict in their own relationships as they mature. The obvious issue here is that if the parents become violent with each other, they start the cycle of domestic violence that may continue with their own children.

So when is it appropriate for the state to intervene? This line is blurry. Some people believe that state intervention is important at the verbal abuse stage and others believe that there should be physical contact between the spouses before the state makes any charges. Nevertheless, most states have criminal statutes that address verbal assaults. A Staten Island Criminal Lawyer said this type of assault usually involves placing another person in fear of an imminent physical assault. That is the difference. If the spouses are merely arguing to work out a problem, they may be angry at each other; but neither party is in fear that the other will actually harm them.

Published on: April 8, 2012

Court Hears Tragic Domestic Violence Case

by Stephen Bilkis

Sometimes, the stories that create law are so horrendous that they speak directly to our hearts. It is at that time that you realize how important the law is. It is also when you realize how important another person’s job can be to the lives of others. In many cases, overworked and underpaid civil servants lose sight of how important their calling is. When that happens, they can drop the ball and cut corners. Cut corners always lead to a bad ending.

In New York, the job of the Clinton County Department of Social Services encompasses the assessment of homes to determine if children are deprived or neglected. A New York Criminal Lawyer said the primary goal of the social worker is to work with the parents to keep the child in their natural born home, if at all possible. Sometimes, it is not possible. Sometimes, the social worker does not keep the paperwork as meticulously as it should be kept. Sometimes, it is not possible for the social worker to predict that the parents who are not beating their children or leaving them without food might be the biggest risk to the children in their care.

On March 31, 2010, a set of twins was born to a young couple in Clinton County, New York. One was a boy named Zachary and the other, his twin sister, Zoe. On July 26, 2010, the New York State Central Registry received a complaint that the twins were being abused or mistreated. The department sent a social worker to the home and discovered that the couple engaged in domestic violence in the direct presence of the twins. There was no information recorded about how this information was received, and no documentation of any steps taken to council the parents. The documentation states that the caseworker recommended that the couple engage in mental health counseling and substance abuse treatment. However, there is no documentation about why these steps were recommended. There is no documentation of any mental health problems or substance abuse associated with the report.

Published on: April 7, 2012

Court Rules on Domestic Violence and Child Neglect Charges

by Stephen Bilkis

In domestic violence cases, the law states that if an incident of domestic violence occurs in the presence of a child, that the involved parties are charged with the offense of cruelty to children, child neglect, or child abuse. Sometimes, the victim is inadvertently charged with child neglect.

In the heat of the moment when handling domestic violence calls, officers are called upon to make immediate judgments. Sometimes, these judgments are made mistakenly and the wrong party is charged in relationship to the incident. The statute orders officers to charge the primary aggressor of the domestic violence assault. Sometimes, it is not immediately clear which party involved in a domestic dispute is the primary aggressor. A New York Criminal Lawyer said these calls are complicated and emotionally charged. Many times, officers rely on the court system to sort through the involvements because they will see the incident after everyone has cooled off. Unfortunately, the courts are also overburdened and court officers have the same problems sorting out the issues. This was the case in an appeal that was requested on August 10, 2010.

A young mother was assaulted by her boyfriend in her home in front of her child. The altercation was volatile and police were called to the scene. The officer interviewed the child and the child stated that he was scared and nervous during the assault. Both the mother and her boyfriend were charged with child neglect. A Brooklyn Criminal Lawyer said when the case came to court, social services had already determined that the incidence of domestic violence had been isolated. The boyfriend was determined to be the primary aggressor. The mother had broken her relationship with the boyfriend and the incident was established to have been an isolated encounter.