New York Criminal Lawyer Blog

Published on: September 28, 2014

Supreme Court judged probable cause

by Stephen Bilkis

This criminal case arises from proceedings charging defendants with multiple counts of obscenity in the third degree based upon their knowing possession, with intent to promote, of allegedly obscene video cassette films. After arraignment, defendants moved to suppress the films contending that the warrant authorizing seizure was not based on probable cause. Justice Court granted the motion and dismissed the informations. County Court affirmed its order and a Judge of this court granted the People leave to appeal. Upon review we addressed both procedural and substantive issues.

A New York Sex Crimes attorney said that the procedural issue concerned the extent of the inquiry a magistrate must make before issuing a warrant to seize materials that may enjoy First Amendment protection. Inasmuch as the magistrate had not viewed the films nor questioned the police but rather relied solely on the police officer’s affidavit for each film, the substantive issue posed was whether the affidavits presented sufficient evidence to enable the magistrate to make an objective determination that there existed probable cause to seize the films because they constituted the fruits, instrumentalities or evidence of a crime.

Applying established law, the Court resolved the procedural issue by stating that the determination of probable cause had to be made by the magistrate, not the police that it had to be made from information submitted or available to him, and that–because the materials presumptively enjoyed First Amendment protection–the magistrate was required to perform his duty with “scrupulous exactitude”

Published on: September 25, 2014

Charles Doyen was convicted in County Cour

by Stephen Bilkis

Petitioners in these three appeals each seek to compel the respondent police departments to comply with their Freedom of Information Law (FOIL) requests for records pertaining to the sex crimes for which they were convicted. Petitioners requested the documents for use in collateral review of their convictions. The police departments, citing Civil Rights Law § 50-b (1), refused the requests in their entirety. Civil Rights Law § 50-b (1) prohibits disclosure by a government employee of any portion of a police report, court file or other document which tends to identify the victim of a sex crime. Petitioners commenced CPLR article 78 proceedings to compel the police departments to comply with their requests arguing that, although section 50-b (1) bars disclosure of information that tends to identify the victim of a sex crime, the exception in section 50-b (2) (a) allowing disclosure to persons “charged” with a sex offense applied to them. The Appellate Division panels have concluded that the term “charged” should be read to apply to the petitioners.

A New York Criminal lawyer said that in 1985, Respondent was convicted in Supreme Court of rape, sodomy, sexual abuse and burglary. He challenged his conviction in a CPL article 440 motion which Supreme Court denied. The Appellate Division affirmed the conviction as well as denial of the CPL article 440 motion. In March 1994, Respondent made a FOIL request to the New York City Police Department for 25 categories of police reports pertaining to his case, which the Police Department denied. Respondent commenced the present article 78 proceeding to compel disclosure. He allegedly seeks these documents in order to file a federal habeas corpus petition. Supreme Court ordered disclosure of the documents and the Appellate Division affirmed, concluding that the petitioner was similarly situated to a person charged with a crime.

In the second case, respondent was convicted in Supreme Court of rape, sodomy and assault in 1988. His conviction was affirmed on appeal. Respondent made three applications for a writ of error coram nobis, which were denied, as well as three unsuccessful motions. Recently, Respondent in federal court prays for a writ of habeas corpus. Although an evidentiary hearing is pending, the federal court has summarily denied all but one of Respondent’s claims of error at his trial. He made his FOIL request to the New York City Police Department, seeking nine categories of reports. The Police Department denied the request under Civil Rights Law § 50-b (1). However, Respondent made another, contemporaneous FOIL request to the District Attorney’s Office seeking substantially the same material, and the District Attorney complied. Respondent brought the present article 78 proceeding to compel the Police Department to disclose its records. He claims they are relevant to the issues raised in his CPL article 440 and federal habeas corpus proceedings. The Supreme Court ordered the Police Department to deliver the records and the Appellate Division, citing its decision in Respondent, affirmed.

Published on: September 24, 2014

SOMTA

by Stephen Bilkis

In May 1995, the Respondent was sentenced in New York County Supreme Court for convictions of Kidnapping in the Second Degree, Promoting Prostitution in the Second Degree and Bail Jumping in the First Degree. He received concurrent indeterminate sentences of 9-18 years incarceration on the kidnapping charge, 4-8 years on the promoting prostitution charge and 3-6 years on the bail jumping charge. According to the State, Respondent’s kidnapping and promoting prostitution charges included conduct in which he restrained the victim, repeatedly raped her, forced her to engage in prostitution, beat her and forced her to ingest narcotics. These acts allegedly occurred in 1992. The Respondent also has prior convictions for unlawful imprisonment, attempted assault and forcing a person to engage in prostitution.

A New York Criminal attorney said that a sex offender civil management petition was filed in Greene County Supreme Court and an amended petition was filed in New York County Supreme Court. The Respondent was in custody pursuant to his sentence at the time of the filing of the initial petition and has been in since that time. In February 2010, the Justice found that there was probable cause to believe that the Respondent was a detained sex offender who suffered from a mental abnormality. The venue of the instant proceeding was subsequently transferred to this Court where the Respondent is awaiting trial.

Article 10 of the Mental Hygiene Law creates a comprehensive system to subject certain sex offenders to indefinite civil confinement or indefinite strict and intensive supervision and treatment. The challenges made here concern a unique category of sex offenses which were created for the first time in New York law by SOMTA and are denominated as “sexually motivated” felonies. A “sexually motivated” felony is one of a list of non-sexual felonies, including, robbery, burglary and kidnapping which “were committed in whole or in substantial part for the purpose of direct sexual gratification of the actor”.

Published on: September 24, 2014

New York’s Penal Law § 15.20

by Stephen Bilkis

Defendant was a Federal corrections officer in Danbury, Connecticut, and asserted that status at the time of his arrest in 1977. He claimed at trial that there were various interpretations of fellow officers and teachers, as well as the peace officer statute itself, upon which he relied for his mistaken belief that he could carry a weapon with legal impunity.

On the trial of the case, the court rejected the defendant’s argument that his personal misunderstanding of the statutory definition of a peace officer is enough to excuse him from criminal liability under New York’s mistake of law statute. The court refused to charge the jury on this issue and defendant was convicted of criminal possession of a weapon in the third degree.

The central issue is whether defendant’s personal misreading or misunderstanding of a statute may excuse criminal conduct in the circumstances of this case.

Published on: September 23, 2014

Hearst Corp. v Clyne

by Stephen Bilkis

This is a proceeding wherein the court is faced with the issue of whether or not its discretion as authorized in People v Kalin to deem a misdemeanor complaint charging a drug-related offense to be an information in the absence of a field test or laboratory analysis violate the defendant’s constitutional right to due process.

Pursuant to Penal Law § 220.03, the defendant is charged with one count of criminal possession of a controlled substance in the seventh degree, a class A misdemeanor. In the Criminal Court complaint, a paralegal with the Kings County District Attorney’s Office states that she is informed by Police Officer KK that on or about 19 April 2009, at 7:32 P.M. at 390 Nostrand Avenue, County of Kings, City and State of New York, defendant was in possession of crack cocaine. In the same complaint the police officer’s professional training in the identification of crack cocaine was cited.

On 28 April 2009, the defendant was arraigned. At that time, the People filed a supporting deposition signed by Officer KK, which identified the contraband seized as a glass pipe containing crack cocaine residue. The People then asked that the complaint be deemed an information, pursuant to Kalin.

Published on: September 23, 2014

State’s Article 10 petition

by Stephen Bilkis

This Sex Crimes which resulted in respondent being eligible for sex offender civil management occurred in 1993 and led to a conviction in 1994 for Attempted Rape in the First Degree, Sexual Abuse in the First Degree and Burglary in the First Degree.

A New York Criminal attorney said that Respondent had been on a rooftop where he was looking at a woman in an apartment across the street, using cocaine and masturbating. He entered the victim’s apartment through a window, took a knife from the apartment, got on top of the previously sleeping victim and placed her hand on his penis. The Respondent at this point indicated that he could not become aroused. The victim threw Respondent off of her bed. He then fled from the apartment and took a purse from her. This was the only incident in which it was known, prior to the Respondent’s placement on Strict and Intensive Supervision and Treatment (“SIST”), that he had engaged in a sex offense involving physical contact with a victim.

Respondent did, prior to being placed on SIST, have an extensive history of exhibitionism. Typically, this would involve him masturbating in public places while his penis was partially exposed to public view. It is clear from his history that he has engaged in such conduct on a large number of occasions over an extensive period of time. Prior to this Court’s probable cause determination, he had been diagnosed as suffering from exhibitionism, voyeurism and cocaine dependence. This last diagnosis was found to be in sustained full remission. Prior to being placed on SIST, Respondent also had a long history of burglary, trespassing and theft related arrests and convictions.

Published on: September 22, 2014

Respondent has submitted a memorandum

by Stephen Bilkis

Respondent was admitted to the practice of law in the State of New York by the Second Judicial Department. At all times relevant to these proceedings, respondent maintained an office for the practice of law within the First Judicial Department.

A New York Criminal attorney said in November 2006, respondent was served with a notice and statement of charges alleging that he engaged in illegal conduct that adversely reflected on his honesty, trustworthiness or fitness as a lawyer, and further engaged in conduct that adversely reflected on his fitness as a lawyer. Both charges arose from respondent’s guilty plea in Supreme Court, Suffolk County, to the crime of attempted criminal sex act in the third degree, a class A misdemeanor. Underlying the guilty plea was respondent’s admission that he engaged in sexually explicit conversations over an Internet chat room with an undercover police officer posing as a 13-year-old girl, followed by his attempted meeting with the presumed minor for purposes of sexual contact. Respondent filed an answer in this proceeding, admitting the charges and requesting a hearing on mitigation.

A hearing was held before a Referee. For the most part, the dissent has accurately stated the evidence adduced at the hearing, which will not be repeated herein. The only omission was the testimony of two character witnesses. The first character witness, the chair of the intellectual property practice at a law firm, testified that he first met respondent in 1998, when he was respondent’s supervising criminal attorney at a New York City law firm. After his arrest, respondent called this attorney and told him what he had done. The witness testified that respondent had a reputation for honesty and integrity, notwithstanding the events leading to his conviction, and that respondent has a pending job offer with his current firm once these disciplinary proceedings are concluded. A second character witness testified that she grew up with respondent, and was close friends with his sister. She further testified that she had kept in touch with respondent, who had a reputation for being a smart and honest person, even after his conviction.

Published on: September 22, 2014

Taylor Law

by Stephen Bilkis

Defendants are the President and two other members of the Executive Board of the Uniformed Firefighters Association (UFA). They have been indicted for Reckless Endangerment in the Second Degree and related crimes arising from their role in calling the first strike of firemen in New York City history on November 6, 1973.

It appears therefrom that the UFA, for a time prior to the strike, had been engaged in negotiations with the City for a new collective bargaining agreement. During the pendency of these negotiations, its rank-and-file membership passed a resolution authorizing the Executive Board to conduct a mailed secret ballot of the membership to determine whether the Board should be enabled to call a total strike of the firefighters of the City of New York at a time and date to be determined by the Executive Board. The result was that New York City’s firefighters voted not to strike. Nevertheless, the defendants conspired to conceal the true outcome of the ballot from both the membership and the public and decided instead to falsely announce that the membership of the UFA had voted overwhelmingly in favor of a total strike. In conjunction with this initial deception, the criminal defendants planned and attempted to coerce the City to accept their contract terms by falsely representing the existence of the strike mandate to the City’s negotiators. Finally, on November 6, 1973, the defendants did in fact call and caused a virtual total strike of the firefighters of New York City–a strike that the firemen themselves, still ignorant of the true outcome of the ballot, had democratically voted against.

A fire then broke-out for five and a half hours throughout the city, desperate civilians and some police officers sounded alarms, lugged their own hoses, broke windows in smoke-filled buildings and prayed anxiously that the small force of non-striking firemen could get to the fires in time.

Published on: September 19, 2014

THE RIGHT TO TREATMENT CASES

by Stephen Bilkis

Defendant, a 16 year old boy, is charged with petit larceny and criminal possession of stolen property both arising out of an alleged pocket-book snatch on May 1, 1978. He was arraigned the next day and held in bail pending a hearing which was held on May 18, 1978. Both charges are class A misdemeanors carrying a maximum penalty for non-youthful offenders of one year’s incarceration. Inasmuch as this 16 year old defendant has never been convicted of a crime or found to be a youthful offender, he is eligible for mandatory adjudication as a youthful offender carrying a maximum penalty of six months incarceration. In this instance, because he must be accorded this mandatory adjudication, the statute requires a single judge trial without a jury. Had the defendant already once been adjudicated a youthful offender thus placing his being treated as such on this occasion within the court’s discretion, he would be entitled to trial by jury.

Defendant now challenges the constitutionality of the statute depriving him of a jury trial. The court is here presented with a constitutional challenge to Criminal Procedure Law § 340.40(7) which denies trial by jury to a youth who is eligible for mandatory youthful offender treatment at the same time this right is available to any other defendant, a discretionary youthful offender included, who is charged with the same crime.

The limited power of trial courts to strike down a State statute as unconstitutional has been stated repeatedly. Particularly courts of first instance should not exercise transcendent power of declaring an act of the Legislature unconstitutional except in rare cases where life and liberty is involved and the invalidity of the act is apparent on its face.

Published on: September 16, 2014

Grand Jury was “severely undermined”

by Stephen Bilkis

On Saturday afternoon, December 22, 1984, A, B , C, and D boarded an IRT express subway train in The Bronx and headed south toward lower Manhattan. The four youths rode together in the rear portion of the seventh car of the train. Two of the four, C and B, had screwdrivers inside their coats, which they said were to be used to break into the coin boxes of video machines.

Defendant boarded this subway train and sat down on a bench towards the rear section of the same car occupied by the four youths. Defendant was carrying an unlicensed .38 caliber pistol loaded with five rounds of ammunition. It appears from the evidence before the Grand Jury that A approached defendant, possibly with D beside him, and stated “give me five dollars”. Neither A nor any of the other youths displayed a weapon. Defendant responded by standing up, pulling out his handgun and firing four shots in rapid succession. The first shot hit A in the chest; the second struck D in the back; the third went through C’s arm and into his left side; the fourth was fired at B, who apparently was then standing in the corner of the car, but missed, deflecting instead off of a wall of the conductor’s cab. After the criminal defendant briefly surveyed the scene around him, he fired another shot at B, who then was sitting on the end bench of the car. The bullet entered the rear of B’s side and severed his spinal cord.

The conductor went into the car where the shooting occurred and saw defendant sitting on a bench, the injured youths lying on the floor or slumped against a seat, and two women who had apparent taken cover, also lying on the floor. Defendant told the conductor that the four youths had tried to rob him.