New York Criminal Lawyer Blog

Published on: April 28, 2012

Court Discusses Search and Seizure Incident

by Stephen Bilkis

Search and seizure incidents, especially those that involve gun crimes or other weapons usually come down to issues of legal precedent. A New York Criminal Lawyer that means that officers have only seconds to decide what their actions are going to be. The courts have months to dissect these actions and make determinations of what the officer should have done in that second or two decision. Because of this, it is not unusual for seizure of weapons to be ruled illegal and excluded from court under the Exclusionary Rule. The Exclusionary Rule states that any item, person, or other object, which is seized by illegal means, is excluded from court. Any item, person, or other evidence that is implicated following the illegal act is also inadmissible in court because it is fruit of the poisonous tree of the illegal means.

In some situations, the rulings do not agree with the law. In some situations, the rulings are completely unrealistic. In both of these circumstances, the court of appeals is called in to correct the injustice. The case at hand is one of those cases.

A police patrol officer was on patrol in Nassau County, New York and observed a subject intentionally impeding the normal flow of traffic. The officer watched as the man turned to walk away. He saw a clip in the man’s back pocket and a metal portion of some object sticking out of the top of the pocket. The officer knew based on his knowledge, experience, and training as a law enforcement officer that the object was either an illegal gravity knife, or an illegal firearm.

Published on: April 28, 2012

Court Discusses Reliability of Field Sobriety Tests

by Stephen Bilkis

When a person gets behind the wheel of a car, they are getting behind the wheel of a machine that is heavy enough to kill another person. It is a weapon when used offensively against another. When a person has already proven that they are incapable of using good enough judgment to continue to possess a driver’s license, is found to be driving a vehicle while under the influence, the crime is especially heinous.

However, justice has many steps for a reason. A New York DWI Lawyer said our justice system is an adversarial justice system. The adversarial nature is in place to prevent the mistakes that human beings make. The appeal process is not in place to provide a sounding board for every criminal. A New York DWI Lawyer said there must be a constitutional ground that makes the case worth reviewing once it is past the Superior court level. In one case that involved a habitual violator with a revoked license, a police officer pulled up behind a car that was parked on the side of the road. When the officer approached the vehicle, he noticed that the subject had a strong odor of alcohol about his person and that his eyes were bloodshot and glassy. His speech was slurred and the subject was unsteady on his feet.

Field Sobriety Tests are notoriously questionable. A Nassau County DWI Lawyer said that they are designed for failure, so it is rarely a surprise when a person who has been asked to participate in these tests, does not pass them. In this case, the subject failed two of the three tests, but it is not clear which ones or what the criteria was for the officer to consider the test to be a failure. The defendant maintained that his arrest was illegal because the officer did not see him driving and could not make a determination that his driving was impaired.

Published on: April 27, 2012

Court Discusses Miranda Warning at DWI Stop

by Stephen Bilkis

Driving while Intoxicated or Driving Under the Influence of alcohol or drugs has become a more commonly charged offense than it has ever been. The reason for this is that the legally intoxicated limit has been substantially reduced in recent years. A New York Criminal Lawyer said the current intoxicated level is .08, but someone with an even lower limit can be charged with DUI if there are circumstances where the officer can prove that the driver was acting in a less safe manner. What that means is that even if the person exhibits no symptoms or behaviors of being intoxicated, the officer can charge them with DUI if they can show that the driver was less safe. What does a court consider less safe? It can be anything from missing a stop sign to having a fatal car accident. Less safe has not been sufficiently defined so that anyone can reasonably protect themselves from this type of charge.

There are several rules that anyone should know when it comes to being charged with DUI or DWI. The first is that the officer is supposed to have articulable suspicion to stop your car. Articulable suspicion means that the officer has observed driving mannerisms that either do constitute a traffic violation, or indicate that the driver may be impaired. Either way, the officer must show that he or she had a reason to stop the car. If there is no reason, or the reason is improper, everything after the stop is inadmissible in court.

Also, as soon as a police officer makes contact with a driver, they are attempting to determine if that driver is intoxicated or not. In order for a police officer to arrest a person for an offense, they must have probable cause to believe that that person is involved in a criminal pursuit. In the case of DUI, the officer must prove that he has probable cause to believe that the driver is intoxicated and less safe to drive the car.A Queens Criminal Lawyer said that means that all voluntary tests requested of you on the side of the road, are designed not to prove your innocence, but rather to obtain probable cause to place you under arrest.

Published on: April 27, 2012

Victim Killed During Burglary

by Stephen Bilkis

On March 28, 1982, a young woman was alone in her apartment in Nassau County New York, when an assailant broke in to her apartment. A New York Lawyer said the assailant gagged her and put a belt around her neck. The young woman died that night due to asphyxiation as a result of the strangulation caused by the gag and belt. Her body was found the following day. The detective assigned to the case discovered that a man who was known to be a burglar of the type that had broken into the woman’s apartment, was known to her.

On March 31, 1982, the detective went to 46 Elm Avenue. He had information that the suspect lived there. He spoke to one of the suspect’s neighbors and left his business card with them to have him call. At 9:25 in the morning April 1st, the suspect called the detective ad agreed to meet with them on April 2nd; The suspect did not show up for the meeting. Upon looking into the suspect’s whereabouts more closely, the detective discovered that the suspect was on parole and had been at the time of the murder. He notified the suspect’s parole officer. The fact that the suspect had been requested to contact the police on April 1st and that he had not notified his parole officer was in essence a parole violation that the suspect could be arrested for.

On April 3rd, the detective met with the parole officer and the parole officer informed the detective that he had been unsuccessful in locating the suspect at his last known address. The police informed the parole officer that they had been informed by the suspect’s girlfriend that he had moved out of that apartment and that she did not know where he had moved to, but that he had not committed a gun crime.

Published on: April 27, 2012

gun

by Stephen Bilkis

On August 15, 1985, a police officer on patrol, at about 2:40 in the morning, made note of the description of a car used in a robbery and gun crime. A New York Criminal Lawyer said the vehicle, that was described as a shiny, 1970s Chevrolet with chrome wheels. The suspects wanted for the robbery were only described as three black males. About ten minutes later, as the officer patrolled the area adjacent to where the robbery occurred, he observed a vehicle matching that description occupied by three black males near Fulton Avenue and North Franklin Street in Hempstead. The robbery had taken place in the Blimpie’s parking lot on Fulton Avenue just a short distance from that location. The officer watched the vehicle and the occupants for a few minutes and then he notified the radio operator that he would be stopping the car. When he stopped the car, the officer executed a full felony traffic stop and approached the car with his gun drawn. He ordered the occupants to show their hands. One of the men who was seated in the back seat, later filed a motion to suppress evidence.

Four other police officers arrived, and the scene was secured. The occupants of the car were directed to exit and keep their hands in view. The man in the back seat, exited the vehicle and was directed to one of the backup officers. A New York Criminal Lawyer said he made a spontaneous statement to that officer that he had two bags of marijuana in his pocket and that he had been selling the drugs. The officer immediately searched the man’s pockets, located $160, and five “nickel” bags of marihuana.

While the officers waited for the victims of the robbery to be brought to the scene to identify the subjects, other officers began the inventory of the vehicle prior to impound by noting the objects that were located in plain view. As the officer looked into the car, he noticed a gold chain in the car behind the front passenger seat. The item was removed and logged. The victims arrived and identified the man who had been in the backseat as the person who robbed them. The officer who had recovered the gold chain asked if one had been taken in the robbery. The victim stated that it was and upon seeing the gold chain that the officer had recovered from the car, he identified it as belonging to him.

Published on: April 27, 2012

Court Discusses Judicial Diversion Program

by Stephen Bilkis

The Drug Reform act of 2009 was created as an effort to divert drug addicts and alcoholics who’s crimes are committed due to their addiction, from the criminal courts and into a treatment facility where they can shed their addiction. A New York Criminal Lawyer said that unfortunately, the temptation of judicial diversion means that many people attempt to take advantage of the system to reduce the time that they will be incarcerated. On such case, a subject had managed to maintain a 20-year career of felony drug crimes. In July of 2009, the subject made a motion to the court to divert his two outstanding drug sales cases to provide him the opportunity to enroll in a long-term residential drug treatment program.

The defendant alleges that even though he has been arrested several times for dealing drugs and for drug crimes in school zones, that he would benefit from a drug treatment program. One evaluator agreed with him, but it was later discovered that he had not mentioned to her that he has never tested positive for alcohol or drugs at the time of any arrest. A New York Criminal Lawyer said he stated that the reason he never had drugs in his system at the time of his arrests was because he was only a “sporadic” user of cocaine.

The state contends that each time the subject was arrested, he was arrested for sale of drugs and not for mere possession or intoxication. The details of his arrests and incarceration reveal the picture of a man who deals drugs for a living. The Drug Rehabilitation Act is aimed at being an intervention program to divert addicts and those who deal only to support their own habit. In this case, even though the defendant claims that he has a drug addiction, the evidence does not support this claim.

Published on: April 27, 2012

Defendant Contends that Key Evidence Proving his Innocence wasnt Allowed

by Stephen Bilkis

On March 10, 1987, a man was convicted of burglary in the first degree, burglary in the second degree, petit larceny, tampering with a witness in the third degree, criminal trespass in the second degree, criminal mischief in the fourth degree, possession of burglary tools and criminal possession of a weapon in the fourth degree. A New York Sex Crimes Lawyer said he immediately filed an appeal requesting that his conviction be reversed.

He contends that the trial court committed an error when they refused to allow the defendant to present evidence that he felt was exculpatory to his case. His contention was that his ex-girlfriend, who testified against him was not a reliable witness. He stated that although in trial, she had testified that she was no longer using drugs, that was a lie. He contends that at the time of the trial, she was still using drugs and that the needle marks on her arms were proof of that fact. He states that her testimony that she witnessed the burglary and then he threatened her if she ever told on him was not trustworthy because of her addiction. He further maintained that criminal trespass is a lesser included offense to the felony offense of burglary. He stated that since it is a lesser included offense, that he should not have received a sentence on it separate from the burglary. On this one contention, the justices agreed and reversed his conviction for criminal trespass.

As far as intimidating a witness, the facts of this count of his conviction are uncontested. Directly after committing the offense, the man threatened her about telling anyone what he had done. He intimated that she would encounter violence if she ever told anyone about the burglary. The defendant contends that this threat does not constitute intimidation of a witness because she was not a witness against him at the time. A New York Sex Crimes Lawyer said the offense had occurred after his arrest, then he would have been guilty of attempting to influence a witness. Since it did not occur after the arrest, but before it, he was not intimidating a witness. The justices agree. This count of the charges are overturned and vacated.

Published on: April 27, 2012

Defendant Contends Eyewitness Testimony is Incorrect

by Stephen Bilkis

Cases that involve drug crimes often include violence. In some cases, this violence is more severe than others are. Few people will not admit that the violence of a criminal exploit is directly relative to the amount of money that the criminal stands to gain. A New York DWI Lawyer said in drug crimes, a criminal often stands to profit huge amounts of money. It doesn’t take much imagination to see the correlation between the modern prohibition against drugs and the historical prohibition against alcohol. Both have caused huge spikes in crime rates and violence. Whenever there is a market for a substance, someone will supply it. If that substance is illegal, the price to obtain it is higher because the supplier is shouldering substantial risk. This is nothing new. John Hancock was a convicted tea smuggler. During the civil war, many privateers smuggled products into the south through the blockades of the ports. Smugglers are nothing new. They are simply privateers who are attempting to increase their income at the expense of people who are willing to pay an inflated price for an illegal substance.

With drugs that are highly addictive, the smuggler or supplier’s income is virtually secure. A New York DWI Lawyer said it is in their best monetary interest to peddle an addictive substance to ensure that the customer will continue to come back and purchase more. In the 1980s, the ability to smuggle drugs into this country was incredible. There were famous drug lords in Bolivia and other areas of South America and Mexico. These men were ruthless and their drug cartels became their family businesses. Few were better known than the Escobar’s.

On January 26, 1985, a woman was standing outside of the ladies’ room in the Extasis bar in Queens County, New York. The music was loud, and she thought she heard firecrackers going off inside of the mens’ room. As she stood in the cramped hallway, she saw a man open the mens’ room door with one hand while holding a handgun in his other. While she watched, she saw him fire two more shots into the mens’ room. The man ran out of the bar. The woman looked into the bathroom and saw the body of another man on the floor bleeding from gunshot wounds. It was later determined that he had been involved with drug trafficking with the Escobar family.

Published on: April 27, 2012

Defendant Claims Police Did Not Have Probable Cause in Drug Stop

by Stephen Bilkis

Around 1985, a detective in plain-clothes and an unmarked car was working a known drug area in Queens when he and his partner saw a transaction that they believed was drug related. A New York Drug Crime Lawyer said they saw one man approach another and hand him money. The other man produced a three by five inch brown envelope and the first man took it in exchange for the money. The officers believed that it was a drug transaction based on the fact that the bags were the size, shape, and description of units called, “three dollar bags” that are often used for drug crimes.

The two officers got out of their car and approached the two men. They identified themselves as police and the two men took flight. A short foot chase ensued in which the defendant threw his hat off and then threw something black into some bushes. A New York Drug Possession Lawyer said one officer retrieved the two items, at which time he discovered that the black item was a handgun. The defendant stopped running and was taken into custody and placed under arrest. Upon checking the operability of the weapon, it was discovered that it was a fully loaded nine-millimeter pistol that was also functional.

The defendant was convicted of drug crime and criminal possession of a weapon. He promptly filed an appeal. His claim is that the officer’s initial stop was investigatory. As such, the officers would have to show reasonable suspicion that a crime is, had, or was about to be committed and that the defendant was one of them. A Nassau County Drug Possession Lawyer said that he contends that the mere passing of an envelope from one person to another on a public street was no implication of a criminal enterprise. He also stated that when he ran, they had no right to chase him because he was only exercising his constitutional right to leave without answering questions.

Published on: April 26, 2012

Husand Moves to Violate Order for Protection

by Stephen Bilkis

A couple co-owned two separate apartments in one building in Manhattan. A larger apartment was their family home and the smaller apartment was the office of the wife. A New York Criminal Lawyer said the couple was having marital problems and the wife moved out of their larger apartment and she had been living in the smaller apartment.

In May 1987, the husband slammed the wife into a wall and she injured her elbow. In October 1987, the husband knocked his wife to the floor and caused her to break her ankle. He forced her to walk on her broken ankle and threw books at her. On June 24, 1988, the husband punched the wife in the mouth and knocked one of her teeth out because she locked herself in the larger apartment and would not let the husband in.

The wife finally filed a complaint for domestic violence against her husband. She also filed a complaint for assault plus harassment. During the arraignment the district attorney asked for a temporary order of protection be issued effective until July 17, 1988. No argument was heard and there were no testimonies presented by the wife or the husband. The arraigning judge issued the temporary order of protection. The husband was released on his own recognizance.