New York Criminal Lawyer Blog

Published on: May 1, 2012

Court Discusses Throwing Out Assault Charge

by Stephen Bilkis

A man was indicted for assault in the first degree and for criminal possession of a loaded firearm as a felony. The man was accused of having assaulted another man by aiming and discharging a loaded pistol at him, with an intent to kill the other individual. At the close of the case, the counsel of the man requested the trial court to charge the jury with respect to assault in the second and third degrees, in addition to assault in the first degree. The court denied the request as it was to charge assault in the third degree. The jury found that the man is guilty of the gun crime and of assault in the second degree.

The court agrees in affirmation as to the conviction for possession of the firearm, but opposes and votes to reverse the judgment insofar. A New York Criminal Lawyer said the judge giving the opinion that, under the circumstances of the case, the trial court committed reversible error in refusing the man’s request to charge assault in the third degree. The evidence tends to establish that the man and the victim of the assault, together with several other companions, who had been drinking in a bar for several hours prior to the incident. When the abovementioned bar closed for the night, the group proceeded across the street and commenced horsing around. The victim testified that he was pretty high at the time of the incident. The behavior engaged in were variously described as kidding around, carrying on, wrestling and grabbing each other, and rolling on the ground. There came a time when the man allegedly drew a pistol and fired it, wounding the victim. The record is barren of evidence which would tend to establish a motive or provocation for the assault. The testimony of the victim, his brother and several other companions is to the consequence that the man drew a pistol, aimed it at the victim and fired. The description of the assault by one of the companions differs materially from that of the others. One of the companions described the incident and stated that they were over there singing and cracking jokes when the man came and said a few words before the gun went off. The gun went off coming out from the man’s pocket. The witness further said that he had just seen the fire and he didn’t see the gun. Therefore, there can be no assurance for assault in the second degree because of the absent proof of the requisite intent. Although the testimony of the victim and the others, excluding one, is sufficient to support a conviction for assault in the second degree, the other companion’s testimony tends to establish that the gun went off accidentally as the man withdrew it from his pocket. The said testimony, coupled with the evidence that the group was intoxicated and the absence of evidence showing motive for the assault, would tend to negate the presence of the required intent. Under the said circumstances, the trial court should have charged the jury with respect to assault in the third degree, which requires no specific intent.

Based on records, it has been repeatedly written that if, upon any view of the facts, an offender could properly be found guilty of a lesser degree or an included crime then the trial judge must submit such lower offense. A Westchester County Criminal Lawyer does not matter how strongly the evidence points to guilt of the crime charged in the condemnation, or how unreasonable it would be, as a court may appraise the weight of the evidence, to find not guilty of that crime and convict of the less serious crime.

Published on: April 30, 2012

Defendant Claims Unlawful Arrest for Shoplifting

by Stephen Bilkis

The plaintiff and appellant of the case is Sharon McNulty. The defendants and appellees in the case are J.C. Penney #2168, J.C. Penney Corporation, J.C. Penney Company, Eric Green, and John Doe Defendants. The case is being heard in the fifth circuit of the United States Court of Appeals.

Appeal

Sharon McNulty, the appellant is challenging the original grant of a summary judgment made by the district court. McNulty was arrested at a J.C. Penney store located in Ridgeland, Mississippi after she had been accused of shoplifting on the 25th of March in 2005.

Published on: April 30, 2012

Court Decides if DWI Offender Should be Denied Gun License

by Stephen Bilkis

The right to bear arms in this country is a vital part of our country’s history. In recent years, the right to bear arms, has been more limited than at any other time in the history of this nation. In order to bear arms in New York, a person must apply for a license. The laws that control the eligibility requirements for obtaining a pistol license are unusually broad. The pistol-licensing officer has tremendous discretion when it comes to approving permits. Penal Law § 400.009(1) states that the pistol licensing officer has the right to deny any application for any good cause.

A New York DWI Lawyer said there have been several appeals based on decisions of pistol licensing officers to deny the right to bear arms in the state of New York. No one wants to have people with mental problems, or serious criminals running around with firearms. So where is the line drawn? Florida’s stand your ground law is being criticized in the news because of the recent shooting involving a neighborhood watch representative who was armed when he encountered a teen in a hoody this year. The teen did not survive the encounter. There were no witnesses to the shooting. The neighborhood watch representative stated that the teen attacked him and he was in fear that he was going to sustain serious bodily harm. Following the police investigation and community outcry, the neighborhood watch representative was arrested. If the neighborhood watch representative had not been armed, the situation would have been different. Whether that means that the neighborhood watch representative would have been injured by the teen is unknown. There have been many situations where people who have exercised their right to bear arms, have had to justify their choices. Ultimately, if a person has to defend their lives in the face of a threat, they are glad to have a gun with them.

In one case from New York in 2011, a man appealed the judgment of the pistol licensing officer who denied his request for a pistol license. He stated that there was no reason for the license to be denied. A New York DWI Lawyer said the pistol licensing officer determined that the man had been arrested three times for DWI and had one conviction for DUI. One of the arrests for DUI occurred while his pistol license was in review. In this case, it is fairly obvious that this man did not exercise good common sense when it came to his actions. Does this mean that he should not be allowed to carry a pistol? It would probably be a bad idea.

Published on: April 30, 2012

Court Discusses Plain View Doctrine

by Stephen Bilkis

Computers are playing an ever increasing role in crime and criminal activity. In some cases, case law is still in a state of flux in determining how certain searches are affected by this technology. A New York Criminal Lawyer said the question of novel issues in court are more common because of this. In one such case, the question was raised of whether a warrant authorizing a search of text files that are on a computer for documentary evidence pertaining to one particular crime, authorizes a search of image files on the same computer that contain evidence of a different crime. In cases like this, the question of law relates to the plain view doctrine.

The plain view doctrine states that anything that an officer can see in plain view while he or she is legally in a location, can be seized without a warrant. The suspect can then be charged with whatever crime the item suggests they are involved in. There are many cases that have established the case law referring to the plain view doctrine. Recently, the plain view doctrine has taken on an entirely different arena. The plain view doctrine can now be applied to computer files that are opened pursuant to a search of the computer. In other words, in the old days, the plain view doctrine applied to anything that an officer could see that was physically in plain view. For instance, a New York Criminal Lawyer said if the officer was inside a house relative to a domestic violence call, and observed a marijuana plant growing in the room, he could seize it and charge the person with possession of marijuana. The reason that he could seize it without a warrant is that he was inside the house legally handling a call for service and observed the plant in plain view. Now, most of us do not think about the files in a computer being in plain view, but if you think about them in the following fashion, it can be understood.

If an officer is searching a file cabinet located in a home for child pornography, under a search warrant that entitles him to look for evidence of the crime of child pornography, he is looking through the file cabinet legally. If he then sees a file that references drug crime, he can seize that file and make the appropriate charges, because he was legally in the file cabinet under the search warrant when he observed the additional file in plain view.

Published on: April 30, 2012

gun

by Stephen Bilkis

A man and his girlfriend double-dated with another couple. They all went to a nightclub where they imbibed alcohol. The man got upset because he lost his stash of drugs. He went to the parking lot and searched the trunk of his car. A New York Sex Crimes Lawyer said when his girlfriend asked what he was doing, he lost his temper and they began arguing.

Soon after, witnesses around the parking lot heard gunshots. Thereafter, the man asked the other couple to bring his girlfriend home. He drove off from the parking lot. The police came just a few minutes after the man drove off and in the parking space his car occupied there were empty 9 millimeter shell casings.

The man drove on the wrong side of the road for about five miles and radar readings showed he was driving at 75 miles per hour. The vehicles on the road moved away from the man’s car to avoid colliding with him.

Published on: April 30, 2012

Defendant Brings Motion to Supress Idenification Testimony

by Stephen Bilkis

This is an appeal of a man from his judgment in the Supreme Court convicting him of criminal possession of a weapon in the second and third degree, upon a jury verdict. A New York Criminal Lawyer said the appeal brings up for review the denial of the accused man’s motion which was to suppress identification testimony and upon an order the court that reversed the above mentioned decision.

Contrary to the accused man’s contention, the pretrial lineup identification was not improperly suggestive. The photographs taken of the lineup reflect that the slight differences in skin tone between the man and the fillers were not so apparent as to orient the viewer toward the man as the offender of the crimes charged. A New York Criminal Lawyer said that based on records, the skin tone is only one of the factors to be considered in deciding reasonable similarity and differences in skin tone alone will not render a lineup improperly suggestive. A the court does not find that the presence of a small tattoo on the side of the man’s face rendered the lineup improperly suggestive.

The court found that improper remarks by the prosecutor during summation deprived the man of a fair trial. The prosecutor improperly vouched for a witness and implied that the witness faced retribution from the man when he stated that the witness testified not knowing what the consequence would be for herself and her family. A said that based on records, a prosecutor may not strengthen the credibility of a witness by making himself or herself unsworn witness and supporting his case by his own veracity and position.

Published on: April 30, 2012

Court Determines Admissibility of Evidence

by Stephen Bilkis

A patrolman was on patrol one evening when he was ordered to investigate a complaint regarding abandoned automobiles in the vicinity of 24 Max Avenue, Hicksville, New York. A New York Criminal Lawyer the building located at that address contains two factory establishments and an apartment on the first floor.

In the course of the investigation, the patrolman knocked on the front door of the apartment at about 9:15 that evening. In response he heard the voice of a very young child whom he later ascertained to be two years of age. He asked through the door if child’s father or mother is at home. The child answered in the negative. He then again asked whether anyone else was home and again the child replied in the negative. The door was not opened. It was locked. He peered through the curtained window and saw the lights on and a television set in operation. At this point, the police officer made a radio call for assistance from the Juvenile Aid Bureau of the Nassau County Police Department. Following the call, a detective of the Juvenile Aid Bureau along with a Sergeant and another Patrolman, operating a police ambulance, convened at the premises. They all approached the apartment. The Patrolman knocked on the door, and on this occasion, a different young voice answered. The patrolman requested the child to open the door. The door was opened and he was met by a five year old female. Thereafter, the police officer questioned the little girl as to the whereabouts of her parents. She told him that there was no one else in the apartment besides the two children. The officer ascertained at that time that the young girl was five years old, and that the child who first answered his knocking was a little boy two years of age.

In the course of being questioned the young girl admired the service revolver belonging to the patrolman and said, “defendant-man has a gun like that”. The girl then turned around and walked over to a cabinet and said, “See, here it is”. She had picked a loaded .38 caliber Smith & Wesson revolver out of the top drawer and the police officers immediately took the gun from her before anything happened. The police asked her, “Has defendant-man any more guns?”, and she replied, “Yes, he has a lot of guns and he also has pot and speed”. She then went back to the same drawer and picked out a plastic bag which contained marijuana and also gave it to the police officers.

Published on: April 30, 2012

Court Discusses Concurrent Sentencing

by Stephen Bilkis

A man was indicted on three counts of robbery in the first degree, one count of attempted robbery in the first degree, five counts of grand larceny in the first degree, one count of assault in the first degree, one count of unlawfully carrying a loaded pistol concealed upon the person, three counts of assault in the second degree, and petit larceny.

A New York Criminal Lawyer said the aforesaid man pleaded guilty to attempted robbery in the first degree (13th count), assault in the first degree (14th count), and unlawfully carrying a loaded pistol concealed upon the person (16th count).

On the date of sentencing, the District Attorney of Nassau County filed an Information charging that the man had previously been convicted of the felony of attempted rape in the second degree, which was admitted to be true.

Published on: April 29, 2012

Police Officer Killed During Burglary

by Stephen Bilkis

A woman and her partner went into a boutique where they obtained a talked with the owner. While the woman went through the process of trying on several dresses that none of which were purchased, the woman’s partner asked directions going to the bathroom which was located to the rear of the store and which he carefully surveyed for the purpose of accomplishing the upcoming burglary. Three days later at about 2:15 a.m., the woman together with her partner pulled into the rear alleyway behind the boutique and stopped the car with the car trunk facing the rear bathroom window. On the evening before, the man which was the woman’s partner had purchased an ankle holster for a gun he owned. Consequently, while the woman acted as a lookout, the man entered the boutique by the bathroom window and he then brought numerous articles of women’s clothing, including 240 ladies’ blouses, 16 pantsuits and 16 ladies’ coats, into the bathroom and gave these articles to woman through the bathroom window. The woman then placed the articles in the trunk of the car. At that moment, an officer accompanied by another officer, who was on routine patrol duty saw the car in the alley and spotted the open bathroom window to the boutique. The officer’s promptly called for assistance. The officer’s also saw the woman hiding behind the car. The questioning by the officers took from one to three minutes and was limited to inquiry of what she was doing, however no arrest was then made.

A New York Criminal Lawyer said apparently, an officer who had just arrived because of the radio call went to the street to cover the front of the store. Simultaneously, the man broke out the front of the store. The officer, who had not drawn his gun, attempted to stop the man but at that point the man attempted to escape the scene and later shot the officer. The officer then died from the wound inflicted by the man.

The woman now contends that there should be a reversal in the conviction that the court made a mistake in refusing to charge the jury as requested by the woman. An NY Criminal Lawyer said the court stated that they found no error or deficiency in the court’s main charge or its refusal to adopt the specific requests to charge. The woman willingly and voluntarily involved herself, and indeed fully participated in a burglary and by doing that she necessarily accepted all the consequences of the felony murder committed either during the course of the burglary or during the man’s immediate flight from the burglary. Based on records, it cannot be reasonably argued that the officer’s momentary intervention as the man was exiting the boutique and fleeing from the burglary, terminated either the burglary or the man’s immediate flight there from. In previous cases, a unanimous court upheld the felony murder conviction upon facts significantly similar and really identical with the woman’s case.

Published on: April 28, 2012

Police Officer Charged with Domestic Violence

by Stephen Bilkis

Domestic violence is a big problem in the world today. It is an even greater problem when it involves the very police officers who are impressed with the responsibility to protect the citizens from these crimes. In the face of this issue, many states have enacted reporting guidelines that affect police officers in domestic violence situations personally.

A New York Sex Crimes Lawyer said any peace officer who engages in any act of domestic violence will lose their certification as a police officer. It will end their careers. It is because of this that most police officers are very careful to not engage in any act that could be perceived as an act of domestic violence.

In March 1998, a ten-year veteran police officer was admitted to a psychiatric hospital suffering from depression and suicidal ideation. She was out of work for several months and then returned to light-duty. Light duty relieves the officer of the expectation of carrying a weapon. She remained on light duty until September of 2001. After that, she was unable to return to work at all. In 2003, she requested that the police department allow her to retire under full duty disability retirement benefits. She stated that she was permanently disabled due to post-traumatic stress disorder and depression. The judge denied her request. She then filed an appeal requesting a hearing and a redetermination of the essence of her case. A hearing was held and the Hearing Officer upheld the denial of retirement benefits. She filed another appeal.