New York City

Published on: October 23, 2012

Defense Contends Unreasonable Delay in Sentencing

by Stephen Bilkis

Defendant is a violent predicate felon. On June 6, 1996, he entered a plea of guilty to the crime of assault in the second degree pursuant to Penal Law, Sec. 120.05(7), a subdivision which is applicable to assaults committed inside a prison facility. A New York Criminal Lawyer said he had been charged with three counts of this crime for viciously assaulting three correction officers with a sharpened toothbrush while being housed at the Rikers Island Correction Facility. At the time, he was incarcerated there under an earlier New York County indictment to answer for the crime of attempted rape in the first degree, more specifically, for forcibly throwing a woman to the ground on 42nd Street while shouting obscenities, demanding sexual intercourse and threatening death. With respect to the attempted rape charge, defendant, one-and-one-half years prior to the entry of the within plea entered a plea of guilty in satisfaction thereof. Despite the elapsation, now, of two years, he has yet to be sentenced in New York County.

A New York Criminal Lawyer said that, notwithstanding, and following four monthly adjournments before this bench, he claims a violation of C.P.L. 380.30(1), moving to divest the Court of jurisdiction that his conviction be vacated and the accusatory instrument dismissed. Defendant contends a failure to pronounce sentence “without unreasonable delay” has prejudiced him. By way of explanation, he sets forth that the 24 months of postponements of sentencing in New York County has been by acquiescence. The Court denied his motion.

The issue in this case is whether defendant is entitled to the dismissal of his case on the ground of failure to pronounce sentence without unreasonable delay.

Published on: July 22, 2012

Defendant Petitions Review of Case Under DLRA

by Stephen Bilkis

New York provides that criminal offenders who have been convicted of certain drug possession crimes and related offenses have the ability to petition the court to vacate their indeterminate sentences and impose a determinate sentence. Prior to 2009, indeterminate sentences for drug crimes and other offenses were common. The concept behind the indeterminate sentence was that it allowed the court and correctional system to work together to customize a fair sentence for each offender. However, it did not take long to realize that customization could also be a synonym for prejudicial sentencing. The Drug Law Reform Act of 2009 was placed into effect to eliminate the subjective atmosphere created by the process of indeterminate sentences. Indeterminate sentences often meant that the time that one offender served was completely different from the sentence that was served by a person who committed the same crime, often a co-defendant of the same crime. The unjust diversity that befell the victims of indeterminate sentencing was the target of the Drug Law Reform Act of 2009.

Under the DLRA a person who was assigned an indeterminate sentence prior to 2009 could appeal to have their sentence vacated and a new one imposed. In order to qualify for the resentencing, an offender must meet certain requirements. They must not have been convicted of certain violent felonies within ten years of the time that they file their requests. There are also other requirements that are necessary for a person to meet before they can be resentenced.

One inmate who petitioned for a review of his sentencing under the DLRA of 2009, was incarcerated based on his conviction on November 5, 2004 for the criminal sale of a controlled substance in the third degree. The criminal sale of a controlled substance in the third degree is a class B drug felony in the state of New York. One of the requirements for resentencing under the DLRA is that the offender is an addict and needs treatment for a drug addiction rather than incarceration. This offender contended that he was not a drug dealer at all, but that he was actually an addict who was dealing to support his own habit. He requested resentencing under the DLRA.

Published on: February 15, 2012

Court Rules on Murder Case

by Stephen Bilkis

A husband was convicted after a jury trial, of attempted murder, assault in the first degree and assault in the second degree. His terms were to run concurrently.

The husband repeatedly stabbed his wife, causing her serious and permanent injuries, and forced her seven year old step-daughter to fall out of a window. A New York DWI Lawyer explained that the principal question is whether the husband was entitled to the requested charge of reckless criminal assault, as a lesser included offense of intentional assault. The husband contends that the court should have granted his request, arguing that it was inherently inconsistent for the court to charge intoxication but not the lesser included offense of reckless assault arising out of that intoxication.

To establish entitlement to a lesser included offense charge, the defendant must show that the additional offense he seeks to have charged is a lesser included offense, an offense of a lesser degree. He must also show that it is theoretically impossible to commit the greater crime without also committing the lesser one and there is a reasonable view of the evidence that would support a finding that he committed the lesser offense but not the greater. A New York Criminal Lawyer contends that with the circumstances presented, it was impossible to commit intentional assault without also committing reckless assault. While the evidence of intoxication may be considered as negating the element of intent, there was insufficient evidence of intoxication for a reasonable person to entertain a doubt as to the husband’s. Thus, as the court argued in opposing the husband’s request for a charge on intoxication, no reasonable view of the evidence show that he was intoxicated. The issue of his intoxication should not have been submitted to the jury, and the court’s failure to charge reckless assault under the theory he was intoxicated was not an error and does not warrant reversal.

Published on: February 13, 2012

Defendant Seeks to Reduce Sex Offender Threat Level

by Stephen Bilkis

In 1985, Juan Santos was convicted of one count of first degree rape, one count of second degree rape, four counts of first degree sodomy and four counts of second degree sodomy. The charges stemmed from claims brought by Mr. Santos’ two stepdaughters, who claimed that he forcibly raped and sodomized them on multiple occasions. Following his conviction, he was sentenced to a combined term of 25 to 50 years.

Mr. Santos’ criminal defense attorney filed a motion to set aside the verdict and this request was granted in 1991. The New York County Supreme Court was unable to determine why the conviction was overturned but the prosecutor in the case claimed they had arranged a plea agreement in which Mr. Santos would plead guilty to one count of first degree rape. In exchange, he received a sentence of 5 to 15 years, according to a New York Criminal Lawyer.

In September 2008, the court received a letter from the New York Board of Examiners of Sex Offenders concerning Mr. Santos’ risk level. The person who drafted the letter, Board Examiner Floyd Epps, stated that Mr. Santos had raped, sodomized, sexually abused and threatened the two victims over a period of several years. The letter also indicated that Mr. Santos claimed the charges were false and that his wife had encouraged the two girls to make up the story because she was angry that he was having an affair. In addition, Mr. Santos has denied committed the sex crimes he was charged with.