Criminal Procedure

Published on: March 9, 2012

Defendant Contends Insufficient Evidence for Robbery Charge

by Stephen Bilkis

Stanley Hedgeman was accused of robbery in the second degree, and the Trial court had ruled he was guilty. Mr. Hedgeman appealed against this ruling, saying it should have been dismissed because there was insufficient proof presented to show he committed the robbery while “aided by another person actually present.” This was Mr. Hedgeman’s main argument.

The Court of Appeals said the question they are asked to answer is whether Mr. Hedgeman, whose only participation was to wait outside the bank and drive the getaway vehicle is guilty of robbery in the second degree. A New York Criminal Lawyer mentioned the court further asked if a person who the victims did not know or seen, be convicted of robbery in the third degree for the crime of aggravated robbery in the second degree? They said to determine this, they must first interpret the words of the law that says, “aided by another person actually present.” Does it mean a person who was physically there or anyone who was actively part of the robbery even if not where the crime happened?

In the trial, the only evidence that the people was able to present was the testimony of the police officer who conducted the interview of the one who did the robbery. The office said the driver was identified by the accused bank robber, and the two discussed the robbery before it happened. According to the court, this does not mean the driver was close enough to be actually present or adequately involved. The testimony of the assistant bank manager, said a Long Island Criminal Lawyer, only said that he saw the suspect get in a car, and someone else was driving. He was not able to identify the driver, so it could have been another person.

Published on: March 8, 2012

Court Rules on Robbery That Resulted in Death of Victim

by Stephen Bilkis

The defendant was charged and convicted of two counts of murder in the second degree and two counts of robbery in the first degree. This was because he was part of a frustrated robbery where the victim died from a gunshot wound to the neck. One of the testimonies in the hearing said the defendant was part of a group of about fifteen teenagers. They approached the the victim, before he could enter a grocery store. It appeared that the defendant was known in the area for shoplifting and selling what he got. The group waited while he was in the grocery. The crowd moved to the bleachers of a recreation center nearby. One of the teenagers showed off a gun to the group.

Less than an hour later, six of the teenagers went back near the grocery store, and the defendant announced he was going to snatch the victim’s bag. Two of the six left, saying they did not want any part of it. A short time later, the defendant went out of the grocery store and along with his three other companions attacked the victim. The defendant was able to get free and hit the victim with a can while holding him against a wall. He then got his bag and said nothing will be taken from him. A shot was fired, said a New York Criminal Lawyer, and the defendant ran with his bag and the four on his heels. People said they heard about six to eight shots at around the time of the chase. The police did not find a bag with clothing, but found a knit hat and sweatshirt near the grocery store.

The defendant argued that it is impossible to have an attempted robbery in the first degree because one of the requirements is an unintended result of causing physical injury when a robbery is committed. They said that the attempt to commit a crime with an unintended result is not recognized by the law. The court changed the charge to attempted robbery in the third degree.

Published on: March 8, 2012

Court Rules on Two Robbery Cases

by Stephen Bilkis

In two unrelated cases of robbery, the same question was asked of the Court of Appeals. The question is whether the evidence plus their display of what appeared to be guns while committing a robbery enough to charge them robbery in the first degree. The first case is the people vs. Lopez, and the second is the people vs. Mendez. A New York Criminal Lawyer said both defendants were convicted of robbery in the first degree, which they appealed.

In the case of Lopez, the robbery took place on a New York street. he was with another man when he approached the victim with two other companions and declared it was a stick up. What they demanded was the victim’s radio. In the victim’s testimony, he said when the robbery was announced, the defendant placed his hand inside his pocket, as if he had a gun. The victim gave his radio, after which the defendant and the other man went in a car driven by a third man to leave the scene. He knew the defendant because he had played basketball with him several years before. The day after the incident, the victim saw the defendant on the street and identified him to the police as the one who held him up. He was convicted of robbery in the first degree for what appeared to be a gun in his pocket and robbery in the second degree on the theory he did it with another person.

The Mendez’ case happened in The Bronx. Mr. Mendez was standing near another man who was seated and when he passed, he was grabbed by the defendant from behind and pushed against a wall. He testified that the defendant demanded for everything he had and took his watch, ripped the chain from his neck and took $80 from his back pocket. The other man who was seated had his right hand under his shirt while watching them. The victim said he heard Mr. Mendez say to the other man not to show the gun to him. According to what a Brooklyn Criminal Lawyer read, it happened some time while the robbery was taking place. In this case, the victim knew the defendant as he saw him at different times at a store near where he worked as well as by his tattoos.

Published on: March 7, 2012

Defendant Contests Calibration of Breathlyzer in DWI Case

by Stephen Bilkis

The accused man is charged of driving while ability is impaired by alcohol. During the course of his DWI consolidated pre-trial hearings and non-jury trial, the accused team objected to the complainant’s admission of the certified calibration records and simulator solution certificates. An NY Criminal Lawyer said that the challenged documents relate to the breath test instrument used to test the accused man’s blood alcohol level at the time of his arrest. The accused counsel’s challenge was made on the grounds that admission of such business records without the testimony of the analyst who created them violates the law. The Court reserved the decision on the application while completion of the case is pending, at which time the Court granted both parties the opportunity to submit summary of law in support of their respective positions. The Court has considered the several submissions by the counsel in concluding that the certified calibration records are admissible and do not violate the law.

A NewYork Criminal Lawyer said that based on records, the law held that since the Constitution guarantees a criminal accused the right to be confronted with the witnesses against him, the practical application of the law prohibits the introduction of out-of-court statements which are testimonial in nature, unless the accused had an opportunity to cross-examine the person who made the statements.

Records similar to the challenged documents have been admitted routinely for years in State DUI cases if properly authenticated under the State business records in exception to the hearsay rule. Most courts examining the issue in light of the law still held the records to be non-testimonial and therefore admissible without live testimony in accordance to the proper authentication. Addressing the business records hearsay exception, the Court of Appeals also cautioned against the categorical elimination of business records as a basic misreading of the law. A thorough analysis declined to adopt a bright line rule admitting business records without testimony, as facts and context are essential and the question of validity of the testimony requires consideration of multiple factors, not all of equal importance in every case.

Published on: March 7, 2012

DWI Defendant Contends Mistaken Identity

by Stephen Bilkis

A man was stopped at the street for failing to wear a seat belt and operating a vehicle with a cracked front windshield. Upon approaching the vehicle, the police officer noticed that the driver have a glassy eyes. The driver responded to the questions of the police officer with a slurred speech and an odor of alcohol emanated from him. After the man failed the standard field sobriety tests, the police arrested the driver for DWI.

A New York Criminal Lawyer said charges against the driver took place and the bail was set and posted. Subsequently, the man came forward and claimed that he did not drive the vehicle which was stopped by the police officer. The man also claimed that his brother used his license and identity. The man submits an affidavit which indicates that he learned of his brother’s arrest when tickets turned up in the man’s mailbox a couple of days after the arrest. The brother of the man called him a couple of days later according to the affidavit submitted. The brother of the man also advised him that he used the license and was arrested for DWI. While no evidence of identity is offered in support of the motion to dismiss the man, the jury concedes that the man did not operate the vehicle and that his brother did. The acknowledgment by the prosecution of the identity of the driver followed initial findings of the present motion. The initial findings ordered a trial to determine that the man did not operate the vehicle in question and was not arrested due to ambiguities in the submitted papers. The prosecution accepted the point rather than proceed to trial. The decision on the merits of the legal action is rendered.

The overlap of the naming of the man as the accused while charging the person of the man’s brother with violating Vehicle and Traffic Law makes the man an wronged person whose privileges to legally operate a motor vehicle have been suspended. The man therefore has the right to challenge the prosecution with his name, his driver’s license and his identity. A New York Criminal Lawyer said that without the right to come forward and reveal the false use of an identity, the man is plagued with the misdemeanor and with potential effects of a conviction. Prosecuting the brother of the man essentially leaves the brother to invest only his time while the man receives the penalties accruing by fines, suspension and revocation of his license.

Published on: March 6, 2012

Court Rules Where DWI Offender Refuses Chemical Test

by Stephen Bilkis

A traffic officer responded to a radio run of an automobile accident at Roosevelt Avenue and Queens Boulevard. When he arrived at the scene, the accused was standing beside an automobile which had been involved in the car accident. The traffic officer testified that the accused had bloodshot eyes, was unsteady on his feet and had the odor of alcohol on his breath. A witness to the accident told the traffic officer that he had seen the accused driving the car. There was no testimony that any other person was observed to be in or around the automobile.

A New York Criminal Lawyer said the accused spoke Spanish and apparently understood little or no English. The traffic officer obtained a driver’s license and other documents bearing the accused man’s name but he was unable to recall whether the documents were given to him by the accused or if they were discovered in the automobile. The accused was placed under arrest and was taken to into the precinct.

A police officer testified that he was called to the precinct to conduct an Intoxicated Driver’s Exam on the accused. In the presence of the traffic officer and the police officer, the accused was shown a Spanish language videotape intended to apprise him of the charges against him and to inform him of the repercussions of refusing to submit to a chemical test analysis or breathalyzer test. The Spanish language tape was translated for the Court by the court interpreter. Such is the only interpretation before the Court as neither the jury nor the accused called an expert witness to translate the videotape.

Published on: March 6, 2012

Court Decides Use of Breathalyzer Under Business Records Exception

by Stephen Bilkis

Initially, the court held that records reflecting the calibration of breath test machine and analysis of breath test simulator solution used in DWI cases were non-testimonial hearsay and admissible over confrontation clause objection under business records exception. The certifications to be submitted for the calibration or maintenance of the breath test instrument and the analysis of the Breath Alcohol simulator solution used in the breath test instrument are either testimonial or non-testimonial in nature. When proven to be testimonial then the complainant must bring in the analyst. If it is non-testimonial, the complainant may lay the basis for introduction of the records.

Testimonial statements are material such as affidavits, custodial examinations, extrajudicial statements, depositions, prior confession, prior testimony that the accused was unable to cross-examine, similar pretrial statements, formalized testimonial materials and statements that were made under circumstances that the complainant would reasonably expect to be used in the later trial.

A New York Criminal Lawyer said the Supreme Court deliberately left for another day any effort to spell out a comprehensive definition of testimonial. The Court does say that when a non-testimonial hearsay is at issue, it is wholly consistent with the design to afford the states flexibility in their development of hearsay law. The Supreme Court’s analysis of testimony excludes some hearsay exceptions, such as business and official records. To hold otherwise would require numerous additional witnesses without any apparent gains in the truth-seeking process. After all, cross-examination is a tool to flesh out the truth, not an empty procedure.

Published on: March 6, 2012

Defedant Contends Illegal Stop in DWI Case

by Stephen Bilkis

A police officer and his partner were on routine patrol at one of the intersections in Queens County. The officers noticed the woman driving a grey Cadillac passed through a steady red light. The other officer pulled the vehicle over and as he approached, the woman rolled down her window. As the officer requested the woman’s license and registration, he noticed that she had bloodshot, watery eyes, and also detected the strong smell of alcohol on the woman’s breath. The officer further observed that the woman seemed disoriented and unaware of her surroundings. The officer requested the woman to step out of the vehicle, at which he also noticed that the woman was unsteady on her feet. The officer placed the woman under arrest. As the officer was escorting the woman to the squad car, she became very loud and argumentative towards the officer.

According to a New York Criminal Lawyer, the woman was brought to the Precinct Intoxicated Drivers Testing Unit (I.D.T.U.) for the purposes of performing chemical testing. The woman was immediately brought to the basement of the precinct where the breathalyzer testing is performed. Present at the testing site were the arresting officer, his partner and two other officers of the precinct. At no time were Miranda warnings given to the woman by the arresting officer.

The officer of the precinct confirmed that he was the officer responsible for administering the breathalyzer test to the woman. The officer also alleged that he has six years of experience with the I.D.T.U., and has conducted six hundred of such tests at a rate of approximately thirty per month.

Published on: March 5, 2012

Defendant Contests Accuracy of Breathalyzer in DWI Case

by Stephen Bilkis

A man filed an appeal from the decision of the first district court of Nassau County concerning its judgment of DWI and over speeding law suit.

The incident happened when a Nassau County police officer observed that the man’s traveling is at about 90 miles per hour on the Long Island Expressway. The officer confirmed that his estimate is done by a laser device and by his speedometer. A New York Criminal Lawyer said the officer stopped the man and found out that the man showed several signs of intoxication. The man admitted to having a drink and the officer administered a series of field sobriety tests, all of which the man failed. The officer arrested the man and transported him to the police department, where the man again failed a series of sobriety tests and permitted to a chemical test of the alcohol content of his blood. The test, conducted through a breath test instrument revealed a result of.11 per centum by weight.

The man wanted to bring in an expert testimony as to the range to get the concentration of alcohol in a person’s blood from the quantity of alcohol vapor detected in a breath sample. The man did not challenge the instrument’s reliability, but sought to lay the foundation for a jury argument that man’s individual ratio might differ so significantly from the mean as to diminish the verification weight to be accorded the test results. The court disallowed the evidence on ground of relevance.

Published on: March 5, 2012

DWI Defendant Contests Driver’s License Suspension

by Stephen Bilkis

The first accused is charged with misdemeanor information with Vehicle and Traffic Law and the second accused is charged in separate misdemeanor information with Vehicle and Traffic Law. The issues raised by the defense counsel are identical in each case.

A New York Criminal Lawyer said that in each case, the accused is alleged to have had operated a motor vehicle while having a blood alcohol level in excess of .10 of 1%. In each case, the accused man’s driver’s license was suspended at arraignment because of the blood alcohol content. The defense counsel contends that the suspension procedure constitutes a penalty the accused moves for orders to dismiss each docket on double jeopardy grounds.

In a recent Law Journal article, it is evident that Vehicle and Traffic Law has been attacked on constitutional and due process grounds throughout the state with the majority of decisions holding the statute constitutionally infirm.