Criminal Procedure

Published on: April 5, 2012

Domestic Violence Cases are Difficult, Particularly Where Children are Involved

by Stephen Bilkis

In July 1996, after a prior order of protection expired, plaintiff obtained a second order of protection against her former boyfriend in Bronx Criminal Court. She delivered the order to the Domestic Violence Unit at her local police precinct and asked that it be served on her former boyfriend. At that time, plaintiff met two officers, the individuals assigned to the unit. Plaintiff later received a telephone call from one of the officers confirming that her former boyfriend had been served with the court order.

According to plaintiff, about a week later, her former boyfriend telephoned her at around 5:00 PM on a Friday evening and threatened to kill her. The former boyfriend had made various threats in the past — threats that prompted plaintiff to secure an order of protection — but plaintiff viewed this threat as an escalation of his hostility because he had not previously threatened to kill her. A New York Criminal Lawyer said the plaintiff immediately left her apartment with her two young sons, planning to go to her grandmother’s house in the Bronx. On the way to her car, however, she stopped at a payphone and contacted the Domestic Violence Unit to alert the police to the latest threat by her former boyfriend. She contended that she spoke with one of the officers, who told her that she should return to her apartment and that the police would arrest her former boyfriend immediately.

After speaking to one of the officers, plaintiff returned to her apartment with her children where she remained for the rest of the evening. She did not hear from the police that evening, nor did she contact the precinct to inquire whether her former boyfriend had been located or arrested. The night passed without incident. A Queens Criminal Lawyer said the following day, a Saturday, plaintiff and her children remained in their apartment most of the day. At about 10:45 PM that evening, plaintiff stepped out of the apartment and into the hallway of her building intending to take out the garbage when she was confronted by her former boyfriend brandishing a gun. He ushered her back into the apartment doorway and shot her two or three times injuring her face and arm. The two children witnessed the shooting but were not physically harmed. The former boyfriend then turned the gun on himself and committed suicide.

Published on: April 5, 2012

Court Decide Child Neglect Case

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. 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 New York Criminal Lawyer said that 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.

The mother requested that her case be dismissed since the Family Court had already determined that she was no threat to the child. In fact, they determined that there was no reason to exercise any sanctions. They found that the child was healthy and that his mental and emotional condition was not impaired or in imminent danger of being impaired as a result of what they described as an isolated incident. The court established that the mother exercised good parenting skills and had an excellent relationship with the child. The child demonstrated a desire to continue residing with his mother. They found that the child and mother shared a positive relationship. When this situation was brought to the court’s attention, it was expected that the victim’s request to vacate the neglect case against her would be accepted. However, inexplicably the court refused to vacate her charge and found her guilty. The mother filed an appeal under the Family Court Act §105(c) stating that the agency’s evidence at the hearing failed to establish that any neglect had occurred in relation to this mother and her child. In essence, the state had failed to make their case by a preponderance of the evidence against the mother. The appellate court determined that the judgment in this case was flawed and that the case should have been vacated.

Published on: April 4, 2012

Court Rules Divorce Case Claiming Domestic Violence

by Stephen Bilkis

The parties herein were married in a religious ceremony on 1 June 2008, in Aventura, Dade County, Florida. There is one (1) child of this marriage who was born in August 2009.

The husband commenced the instant action for divorce in Kings County, New York and for custody of the minor child on or about 14 June 2011. At the time the action for divorce was commenced, the parties were living apart for several months.

A New York Criminal Lawyer said the wife instituted an action for divorce in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida and filed and received an ex-parte injunction on 18 March 2011 enjoining either party from removing the child from the State of Florida and allowing supervised visits with the child. The wife predicated her original petition on the grounds of domestic violence and the husband’s allegedly ordering the wife to take the child and reside with the maternal grandparents in Boca Raton, Florida. Her petition in Florida has since been amended on 5 July 2011 to include claims for both spousal and child support and alleging assault, battery and cyber stalking by electronic communication in Florida.

Published on: April 4, 2012

Court Discusses Violation of Order of Protection

by Stephen Bilkis

On 22 February 1997, the defendant, after a parental visit, brought his children directly to his then wife (now former wife) in contravention to a court order of protection (hereinafter COOP). Thereafter, a verbal and physical confrontation occurred between the defendant and his wife. The COOP provided that the defendant was to return his children to the local police station.

The defendant was indicted and tried for crimes involved in this incident and another.

On 24 March 1999 after a jury trial, the defendant was found guilty of assault in the second degree, two counts of assault in the third degree, and two counts of criminal contempt in the first degree.

Published on: April 3, 2012

Court Rules on Domestic Violence

by Stephen Bilkis

A wife and her husband filed their individual action for the child custody of their twin son. The twins were in the Dominican Republic and it is undisputed that the father obtained a default order of custody there in 2002.

A New York Criminal Lawyer said a review of the documents of the Dominican proceedings confirms that the mother and father separated. At that time, in accordance to an agreement signed before the assistant to the prosecutor, the father consented to the terms of an order of protection, agreeing to refrain from assaulting the mother verbally or physically, and to vacate the family home until the mother was able to find other housing. He agreed to pay child support, and was given regular visitations as long as he behaves appropriately.

The mother left the Dominican Republic in December 1999, leaving the children with her mother and remarrying in June 2000. Five weeks later, while the mother was still in the United States, the father filed a claim for custody of the two children in the Court of the First Instance for Children and Adolescents. The maternal grandmother, who had physical custody of the children at the time, was named as offender in the matter.

Published on: April 3, 2012

Does the State’s failure to increase the compensation rates for assigned counsel violates the constitutional and statutory right to meaningful and effective representation

by Stephen Bilkis

A Lawyers’ Association filed for a rate increase to the State for their in and out of court work. The issue is whether the State’s failure to increase the compensation rates for assigned counsel violates the constitutional and statutory right to meaningful and effective representation.

A New York Criminal Lawyer said the court finds beyond a reasonable doubt that it does and results in obstructing the judiciary’s ability to function, and declares the law that set those rates are unconstitutional as applied. The court also directed the payment of $90 an hour without distinction between in- and out-of-court work, and without ceilings on total per case compensation, until the governing body acts to address the issue.

Based from the evidence, the grim reality that children and indigent adults in the State Family Court, Criminal Court, and Criminal Term of Supreme Court are at unreasonable risk of being subjected to a process that is neither swift nor deliberate, and fails to confirm the confidence and reliability in the system of justice. It is a direct result of the law-making body’s failure to provide adequate compensation to the assigned counsel. The right of a criminal accused party or Family Court complainant to interpose an attorney between himself and the State with its considerable power and resources is a cherished principle, zealously protected by the State courts. The State continues to ignore its constitutional obligation to the poor by failing to increase the assigned counsel rates that result, in many cases, in denial of counsel, delay in the appointment of counsel, and less than meaningful and effective legal representation. Accordingly, the court declares portions of section of the County Law, section of the Family Court Act and section of the Judiciary Law to be unconstitutional as applied. These statutes were enacted without a mechanism for automatic periodic increases, therefore requiring recurrent visitation by the law-making body. The initial rate set in 1965 of $15 an hour for in-court work and $10 an hour for out-of-court work has been increased twice to $25 and $15 in 1978, and $40 and $25 in 1985. The last increase was 17 years ago.

Published on: April 2, 2012

Court Decides Jurisdiction Issue in Domestic Violence Case

by Stephen Bilkis

The parties met through the Internet in 2003, when the mother was studying veterinary medicine and the father was a teacher studying for a Master of Education degree. The parties married on 5 June 2004, in Kentucky. Six months later, the mother became pregnant, but continued her veterinary studies and graduated in May 2005. Upon graduation, the mother moved to New York, where the father joined her soon thereafter.

A New York Criminal Lawyer said that in September 2005, the mother gave birth, in New York, to twin daughters. On 31 October 2005, both parties and the children moved to Kentucky. In August 2006 the parties purchased a house in Kentucky.

In January 2007 the father commenced an action for divorce in Kentucky Family Court.

Published on: April 2, 2012

Court Decides if Removal of a Child is Necessary in a Domestic Violence Case

by Stephen Bilkis

Three different women were physically abused by their intimate partners or husbands. These three different women all had children who were then living with them at the time that the domestic violence against the women occurred.

These three different women all asked the help of the police and the family court to stop the domestic violence. In all the three cases, the family court issued orders of protection.

In the same family court where these cases for domestic violence were pending, the Administration for Child Services (ACS) all intervened. ACS had a standing policy that all children were removed from the mothers who were victims of domestic violence because even as victims, they are also deemed to have engaged in domestic violence. The ACS contends that the battered woman is negligent when she allowed her children to witness the domestic violence committed against her. The ACS put all the children of these battered women in foster care.

Published on: March 11, 2012

Defendant Charged with Robbery Claims They Did not have a Weapon

by Stephen Bilkis

Vincent Knowles was charged with one count of robbery in the first degree. He admitted in the hearing before the court that he did steal money, a wallet, jewelry and subway tokens from a Henry Laylock. He also testified that he placed his hand in his pocket, which looked like he had a gun so Mr. Laylock will give him his valuables. The fact was he was unarmed. He pleaded guilty to robbery in the second degree. A New York Criminal Lawyer said if a person displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm when he forcibly steals a property, he is guilty of robbery in the second degree according to the law.

The Trial Court had accepted Mr. Knowles plea, and the case was given to the Supreme Court Appellate Division for review. The Court of Appeals in their review said they need to be one to check if the letter of the law was correctly interpreted in this case. The law states a person who “displays what appears to be” a firearm during a robbery is guilty of robbery in the second degree. The focus they said is to be on the word appears instead of display. In this case, Mr. Knowles did not display anything as his hand was in his pocket during the robbery. In his testimony, he admitted he pretended it was a gun.

Before any revision to the Penal Law, the only law which pertained to firearms was with the robbery in the first degree, according to a Suffolk County Criminal Lawyer. This is when a person is armed with a dangerous weapon when committing a robbery. It was not defined by the unrevised law, but the court had always ruled to show the weapon needs to be working and loaded for it to be deemed dangerous. If the gun is inoperable and not loaded, it fell on the robbery in the third degree. So even in the previous statute, this was not a robbery in the first degree.

Published on: March 9, 2012

Defendant Contends They Did Not Carry a Weapon During Robbery

by Stephen Bilkis

On the afternoon of May 22, 2008, John Grant walked in Staten Island Bank. He went to the teller in one of the stations and gave a note that said, “I have a gun, Fill the bag. Don’t say anything or I’ll shoot.” A New York Criminal Lawyer said the teller, in her sworn statement, said she saw a firearm and just followed the instruction give to her. She got all the money in her station and placed it inside Mr. Grant’s bag. She handed the bag back to Mr. Grant, with $1,810 in it but kept the demand note. After Mr. Grant left, she locked the doors, and she informed the police of what happened. The police arrived at the scene and the detectives who responded took the video from the bank’s surveillance. They got still pictures from the video and after an investigation that lasted for four months, found Mr. Grant, and placed him in a line up for the teller to identify. The teller did identify him as the bank robber.

Mr. Grant filed an omnibus motion where he asked the court to dismiss the one count of first-degree robbery and on one count of grand larceny in the fourth degree. An omnibus motion is motions bundled together. He said it was not enough to say he was guilty of robbery in the first degree just because of the note, which said he was in possession of a weapon, that it was loaded, and it could be used against the teller. In the jury trial, the people said the possession of a dangerous instrument was not required in the determination of a first-degree robbery. The jury found Mr. Grant guilty of one count of robbery in the first degree and one count of grand larceny in the fourth degree.

The Supreme Court was asked to review the case, and in their examination of the transcript of the hearing affirmed the charge of grand larceny in the fourth degree. They also lowered the charge for the robbery from the fist degree to the third degree. A Brooklyn Criminal Lawyer said the mere statement of a person he has a gun, and he would shoot is not enough to support the charge for a robbery in the first degree, according to a New York Robbery Lawyer who read the decision of the Supreme Court.