New York Criminal Lawyer Blog

Published on: April 21, 2012

Court Discusses Jurisdiction of Integrated Domestic Violence Court

by Stephen Bilkis

A man was charged on one count of harassment in the second degree alleging an act of domestic violence against the complainant. Consequently, the man served an action on the district attorney while the court action was pending. The three petitions were concurrently pending in the family court between the man, the complainant and a third family member concerning the custody of the man and complainant’s child. The pending decision of the criminal and family court matters with the underlying issue prompted a screening by the Supreme Court and its integrated domestic violence (IDV) part in the county. After the screening, the court determined that the transfer of the family’s cases to the IDV was appropriate by finding that it would promote the administration of justice.

The man moved for dismissal of the charged on one count of harassment in the second degree alleging an act of domestic cruelty against him and asserts that Supreme Court lacks an essential subject matter authority citing criminal procedure law. A New York Criminal Lawyer said the man also argued that irrelevant offenses charged as a sole count in a legal document may not be tried in the Supreme Court unless the offense is charged in an allegation that also charges a crime. The man further relies on the recent Court of Appeal’s decision that supports his dismissal request.

The man also claims that to understand the provisions of the constitution to grant the transfer of authority to the Supreme Court IDV part and to transfer a sole count of a violation level offense would support an improper use of the court’s resources and gives the court’s unarguable subject matter authority over more serious offenses.

Published on: April 21, 2012

Defendant Charged with Gun Possession

by Stephen Bilkis

On March 11, 2007, two police officers were on motor patrol in an area known for gang activity. At around 11:30 pm, a man walked in front of the police officers’ unmarked car. The man was walking slowly, impeding the smooth flow of traffic on the street. A New York Criminal Lawyer said that as he passed the police officers’ car, one of the police officers noticed a shiny object glinting at the rear right pants pocket of the man who passed by.

As the man was walking slowly, the officer noted that the glinting object appeared to be metallic and it was inside his rear pocket. Only the clip was showing outside and the top part of the object was protruding from the pocket.

The police officer has had the experience of making 50 arrests for weapons possessions and he believed that the glinting object clipped to the man’s pocket was either a gravity knife or a small-caliber handgun.

Published on: April 21, 2012

Police Mistakenly Shoots Store Employee

by Stephen Bilkis

A fur store employee was present when the store was robbed by two-armed man. According to the employee’s statement, he and his employer were forced into the sales vault, handcuffed, and taped, and one of the gunmen hit him in the head with a gun. The employee was able to free himself and ran to the street, but the two robbers got away. Upon his return to the store, several police officers were on the scene. The man’s employer indicated that one of the robbers had left a gun on the bottom of the fur rack, and his employee saw it. A New York Drug Crime Lawyer said that according to the employee’s statement, the police officer picked up the gun, put it on the desk, and the gun went off. The employee’s previous statement states that he did not see the gun being picked up and was only aware that it had been moved after he was shot. He turned to the location from where the bullet had traveled and saw the smoking gun on the desk, with the police officer holding it. The employee also claims that the police officer hit him and apologized.

The police officer testified that she had received firearms training as part of her police academy training and every year thereafter she received re-qualifying training. A New York Drug Possession Lawyer said she testified as to past experiences handling guns at scenes of crimes and unloading her weapon. She was assigned to evidence collection on the day of the gun crime. At the scene, she was instructed to pick up the weapon to determine its type and she took a couple of photographs of the gun before she picked it up with her left hand on the barrel and her right hand on the butt. She could not tell if the slide had been pulled back and did not know if there was a safety. She held it with her finger, placed it evenly on the table and did not place it pointed in any particular position. When she placed it on the desk, the gun went off though she did not touch the trigger and did not know why the gun fired. The alleged gun crime victim was treated for tinnitus.

The employee filed a notice of claim upon the State alleging negligence and personal injuries. He alleged that he was carelessly and negligently shot by an unknown female police officer acting with the scope of her duties, and that the State and the City Police Department had negligently hired, trained, and supervised the officer, and should have known she was unfit to perform her duties. The employee commenced an action by filing summons and verified complaint.

Published on: April 21, 2012

Court Rules on Legality of Wiretapping in Domestic Violence Case

by Stephen Bilkis

In domestic violence cases, the court is often called upon to review actions that people have taken in contradiction to the law. In New York, the wiretapping laws are clear. If one of the two people involved in the conversation on a telephone line is aware of the taping, then the tape is legal and may be presented in a court of law. If however, the tape is made by a third person with no input into the call and without the knowledge or permission of anyone involved in the conversation, then the tape is not admissible in court and is considered an illegal wiretap. A New York Sex Crimes Lawyer said the laws that control these wiretaps explicitly detail that anyone who wants to tape a conversation must obtain an order authorizing the wiretap from a Supreme Court judge.

In many domestic violence cases, one or both of the parties involved may attempt to gain information about the other to use in court. If the information is obtained without the proper judicial order, it must be reviewed to determine if one of the parties involved in the conversation gave permission for the tape. If it is proven that one of the parties in the tape gave permission for it to be made, then the court has other procedures that it must follow. A certified court recorded will make an official transcript of the conversation on the tape. In most cases, the defendant’s attorney will want to depose the people or person on the tape in order to establish the veracity. In some cases, this can become problematic for the court. This is the case if the person who gave permission for the tape is located more than 100 miles from the point of the trial. In the present case, a wife had in her possession in matrimonial issue, a tape that she contends will prove that her husband is lying. A New York Sex Crimes Lawyer said the proposed that the conversation on the tape, that took place between he and his sister detailed his deceptive practices and is therefore critical to the defense of this woman and the custody issue at stake.

The judge ruled that the tape would have to be authenticated by official contact with the sister who gave permission for the tape to be made. A Queens Sex Crimes Lawyer said then the sister officially notifies the court that she did give permission for her brother’s wife to tape her conversation with her brother, then the court will authorize a transcript of the tape. The court further states that upon acceptance of the tape as legitimate, the sister will be made convenient to the defense for a deposition.

Published on: April 21, 2012

Couple Try to Back Out of Giving Child Up for Adoption

by Stephen Bilkis

A 22-year old black woman became pregnant by her 23-year old boyfriend. At that time, the mother was teaching at a Christian school by day and she was studying at a community college to earn a degree as a medical assistant. Her boyfriend was working for a large retail company but he was working toward a degree in automotive mechanics.

A New York Criminal Lawyer said both the woman and the man lived with their families. The woman had a two-year old daughter who lived with her and the man had a three year old son who lived with his ex-girlfriend but the man enjoys joint custody and regularly paid child support for his son.

While the woman was pregnant, she responded to a personal advertisement in a newspaper placed by a single woman who wanted to adopt a baby. The woman and the pregnant lady spoke to each other over the phone and they met several times. Both the pregnant woman and her boyfriend liked the woman and were willing have their baby adopted by the single woman.

Published on: April 21, 2012

Court Rules on Custody Dispute

by Stephen Bilkis

Custody issues are never pleasant; however, they are often complicated by differing parenting styles and volatile relationships between the parents. A New York Criminal Lawyer said the court is responsible for determining what if anything will improve the child’s emotional and physical development. In some cases, these decisions are complicated further by domestic violence and poor choices that have been made by one or both parents who are involved in the custody case. In New York, the law is very concerned with the child involved being given the best opportunities. It is because of this outlook that New York courts appoint the child their own attorney to represent their best interests in a custody case.

This is the situation that one couple found themselves in. In May of 2002, a thirty-two year old man met and married a thirty year old woman in New York. The father was a first grade teacher at the time and the mother was an interpreter. They had only known one another for a short time prior to the marriage was in part decided due to the fact that the woman had become pregnant. During the pregnancy, the couple had a violent argument. The father threw his pregnant wife down a flight of stairs in front of her sister. When she attempted to call the police for assistance, he grabbed the phone and pulled it out of the wall to prevent her making the call. Her sister witnessed the incident.

The wife moved out of the house and was living apart from the man at the time that she gave birth to their son in December of 2002. A New York Criminal Lawyer said the couple admit that during the time they were together that a large amount of the time was marked by violence and arguments. During the next few years, the mother raised the son herself with little interaction with the father.

Published on: April 20, 2012

Court Discusses if Illegal Seizure Took Place

by Stephen Bilkis

On the night of April 26, 1974, two Nassau County police officers were working undercover in plainclothes on a burglary sting in a well-lit shopping and entertainment area in Wantach, Long Island. There had been several burglaries in the area and they were attempting to apprehend the suspects. While they were watching, they observed a Buick driving slowly down the street. The vehicle slowed down perceptibly in front of a bar and all three of the occupants turned to look at the windows of the establishment. The vehicle proceeded farther down the street to a stop sign. The vehicle stopped at the sign and again, all of the occupants turned to examine the windows of another bar on the side of the road. A New York Drug Crime Lawyer said the officers considered this behavior to be consistent with the behavior of a person “casing” a building before attempting to burglarize it. They initiated a traffic stop of the vehicle.

Upon stopping the vehicle, the officers requested that the driver provide his driver’s license. He advised that he did not have a driver’s license. The officers requested the registration on the vehicle and the subjects stated that they did not have it. The vehicle was owned by the mother of one of the passengers. The men were later discovered to have her permission to drive the car. The occupants of the car were asked to exit the vehicle. When they were outside of the vehicle, the officers executed a terry stop and frisk of them. One of the officers felt a suspicious bulge in the pocket of one of the passengers. A New York Drug Possession Lawyer said when he retrieved the items, they proved to be bullets. A subsequent search of the area within the subjects immediate control, led the officers to find a gun concealed under the front seat of the car.

The question of law in this case is whether the stop of the car was justified or was it an illegal seizure. The rules of law that dictate when an officer can stop a car are clearly documented in statutory law. It states that an officer may stop a vehicle that he observes committing a crime. In absence of an immediate crime, if the officer has articulable reasonable suspicion to believe that a crime is afoot, he may stop the vehicle to investigate. In this case, the officers stated that they had merely seen the occupants glance at two bars as they drove down the street. The fact that they stopped twice is not relevant since one of those stops was at a stop sign.

Published on: April 20, 2012

Court Decides if Attorney Charged with Domestic Violence Should be Sanctioned

by Stephen Bilkis

In August 2005, New Jersey, respondent engaged in a physical altercation with his wife that took place in March of that year. Respondent pleaded guilty to the crime of simple assault, for which he was sentenced to one year of probation. As a result of that conviction, respondent (who is also a member of the New Jersey bar) was censured by the New Jersey Supreme Court.

A New York Sex Crimes Lawyer said that on December 2007, respondent had another instance in which he struck his wife while they were on vacation in the Caribbean.

In 2008, Virginia, respondent was involved in a domestic dispute with his wife in March of that year. The altercation culminated in respondent striking and restraining his wife, causing physical injuries to her that required medical attention. Respondent was arrested and subsequently pleaded guilty to the felony of unlawful wounding, in violation of the Virginia Code, for which he was sentenced to three years of incarceration with all but 12 months suspended, subject to certain conditions. Upon release from prison in February 2009, respondent was placed on probation until February 2011. An order of protection was also issued, which directed respondent to stay away from his wife and to make restitution to her in the amount of $2,283.43. The Virginia conviction gave rise to the instant proceeding.

Published on: April 20, 2012

Court Disusses Authority of Housing Court vs. Family Court

by Stephen Bilkis

In New York, there are several different remedies which may be applied in the case of a family dispute. The couple, especially if they are in government housing, may proceed with an illegal lock out complaint to be reinstated to the apartment through the housing authority. However, if a complaint to address these issues has already been filed in Family Court, the Housing Court will generally refer the case back there. Family court has more liberty to pursue different remedies than does Housing Court. In order for a person to get reinstated to an apartment, they must be on the housing authority paperwork as a tenant or co-tenant. A New York Criminal Lawyer said the couple may also pursue a domestic violence case in either Family Court, or Criminal Court, or both. In a case where there are other issues pending in additional courts, Housing Court will generally refer the housing issue to be handled by the other court.

In one case, a man and his wife who lived in a housing authority apartment had a verbal argument one night that was so heated that the police were requested to come to the residence. The wife informed the police that during the argument, her husband had told their children that he was a member of the “Bloods” gang and that women were not to be respected. He told the children that women were supposed to be under the foot of the man. A New York Criminal Lawyer said his wife had a previous order of protection that had been in effect in 1998 and it had barred the husband from the apartment. The police told the man to go out for a walk and cool down. He left the apartment. The police took a police report and left.

The man claims that when he returned, his belongings were out front and the locks to the apartment had been changed so that he could not get back in. The wife claims that she did not put his belongings out, nor did she change the locks. She stated that she obtained an order of protection for herself and the children. That order of protection declares that the husband is barred from the apartment until the hearing of the case in August of 2004. Since there is an order in effect in Family Court that prohibits the husband from going back in to the apartment until after the hearing in August, it is a moot point to have a hearing in Housing Court. Clearly, there is no way that the housing court could overrule the order of Family Court to allow the man to move back in to the apartment before the hearing in August. It is because of this that the petition to allow the man to move back in to the apartment was dismissed.

Published on: April 20, 2012

Court Hears Battered Parent Defense

by Stephen Bilkis

A New York Criminal Lawyer says that domestic violence comes in all shapes and sizes. Fifty years ago, domestic violence cases were not recognized. In many cases the victims of domestic violence were ignored. It was a dirty family secret that few people talked about. The victims were ignored. It was not until the late 1980s and into the 1990s that the psychology of domestic violence was finally studied. Now, courts often hear evidence related to the fear associated with being battered in domestic violence. Several syndromes are common place in court rooms today: battered child syndrome, battered wife’s syndrome, and battered women’s syndrome. Crimes against the elderly do not get as much attention. In fact, it has only been in recent years that some states have begun to recognize that the psychological issues associated with being battered are not gender specific. Their wives or their children can batter men. In fact, many states have enacted additional statutes that are designed to protect the elderly from being battered by their children by changing the language of their battering laws to make them non gender specific.

In New York, in 1999, there had never been a case that involved a father being battered by his child. On June 21, 1999, a man who had been arrested for the murder of his adult son, filed a CP: 250.10 notice to the court that he would be offering a battered defense at trial. He requested that his medical expert on the subject be allowed to testify on his behalf. A New York Criminal Lawyer said the District Attorney assigned to the case stated that the state of New York did not recognize a defense of Battered Parent Syndrome. The District Attorney further stated that even if Battered Parent Syndrome did occur, a medical expert would not be necessary because most jurors have the ordinary training and intelligence to evaluate if the person is suffering from that syndrome.

The defense argued that since battered parent syndrome is not normally referred to by the general public, it is necessary to have an expert explain the correlation between battered parent syndrome and other battered syndromes. By showing the jurors that other states have already begun to recognize this condition as non-gender specific, it becomes easier for them to relate to the defendant.