New York Criminal Lawyer Blog

Published on: April 20, 2012

Defendant Charged with Class E Felonies based on Prior Misdemeanor Charge

by Stephen Bilkis

Ono June 21, 2007, a man was apprehended and subsequently charged with driving while intoxicated per se and common law driving while intoxicated. These two charges in the indictment are class E felonies which are predicated on a previous misdemeanor conviction for driving while intoxicated in 2001.

After arraignment, a New York DWI Lawyer said the man asked the court to reduce the felony driving while intoxicated charges to misdemeanors. He claims that in 2001 when he was convicted of those two misdemeanors, his constitutional right to counsel and his right to remain silent was violated.

From the records it was established that on August 25, 2001, the man was arrested in Saranac Lake and he was charged with misdemeanor crime of driving while intoxicated. He was taken to the police station and there he learned that he was also being arrested for assault on a domestic violence charge.

Published on: April 20, 2012

Court Decides Custody Arrangement in Light of Domestic Violence Incidents

by Stephen Bilkis

A man and a woman lived together and had a child who was born on February 17, 1990. They were married five months later on May 7, 1990. They resided at an apartment on Fifth Avenue. During their stay at the apartment, the woman met and cultivated a friendship with another woman who resided on another floor of the same apartment building.

The friend saw the woman everyday and noticed bruises on her face and arms. She saw her with a split lip. One evening the woman came to her friend’s apartment asking for help. She was bleeding from a cut above her right eye. She was crying and shaking. The friend called the police and after that, the friend went up to the woman’s apartment on the 19th floor to get her baby. The friend recalls that the woman invariably told her that it was her husband who hurt her. She also confided in her that they were fighting all the time.

The woman applied for and was able to obtain a temporary order of protection against her husband from the Criminal court for domestic violence. Six months after the issuance of the order of protection, her husband was arrested for violating the order of protection. He pleaded guilty and was imprisoned for six months. A final order of protection was issued to the wife for a period of three years.

Published on: April 20, 2012

Should Lawyer Involved in Domestic Violence be Suspended?

by Stephen Bilkis

A lawyer was admitted into the practice of law in New York in December 7, 2006 and he has been practicing as a lawyer in New York since that tiime . Sometime in October 4, 2007, he assaulted his live-in girlfriend. He threw her repeatedly onto the floor. He slapped her on the face repeatedly while screaming that she was a slut and a whore. The girlfriend sustained injuries that required a medical attention.

A New York Criminal Lawyer said after he assaulted his girlfriend, he smashed her Cartier watch with a hammer. He took her designer purse and filled it with water. He punctured a painting that belonged to her and he sprayed her couch with water and oil.

He was charged with assault and with criminal destruction of property. He pleaded guilty to the assault and entered a plea bargain agreement where he promised to pay the damage to his girlfriend’s property in the amount of $8,000.00. He was sentenced to ten months imprisonment and he served six months of that sentence in jail. A final order of protection was entered against him.

Published on: April 19, 2012

Court Determines Custody in Light of Domestic Violence Allegations

by Stephen Bilkis

A New York Sex Crimes Lawyer said that the defendant-mother (hereinafter referred to as mother) and plaintiff-father (hereinafter referred to as father) were married in December 1996 and in 2003 were physically separated when the mother left the marital residence alleging abuse against her and the children.

The mother moved for an order of custody and modification of prior orders of custody entered in the Family Court, on consent. There are two (2) children of this marriage ages 14 and 9.

On 27 June 2003 the father filed a petition for custody in Family Court, Kings County.

Published on: April 19, 2012

Plaintiff Sues Police for not Enforcing Order of Protection

by Stephen Bilkis

On February 13, 1992, a woman pulled up to an area in Nassau County where she saw police officers working a car accident. She got out of her car and screamed for them to help her. She advised them that her husband was in her car with a knife and he was threatening to hurt her. She advised that she had an active order of protection against him. She showed the officers her order and asked them to help. The officers told her that they would take care of him after she left. However, a New York Criminal Lawyer said they failed to arrest her husband for the violation of the order of protection.

The next morning as she prepared to leave for work for the day, she exited her home. Her husband was hiding outside of the residence when she walked out. He attacked her with a machete causing serious bodily harm to her. She contends that if the police officers had done their duty and enforced the order of protection, she would not have been injured because her husband would have been in jail.

She filed a civil suit against the county where the officers worked for personal injury damages. The county maintained that they could only be partially responsible for the injuries that occurred to her because her husband was more culpable than they were. Under New York law, CPLR article 16, a joint tortfeasor’s liability for non-economic losses is proportional upon proof that it is 50% or less culpable for the personal injury. There are exemptions to this rule, domestic violence is not one of them. The court determined that in order to waive this rule, domestic violence would have to be added as one of the exemptions. The court just was not ready to create all new case law that would include domestic violence cases in the exemptions. Prior to this case being appealed, the victim had been awarded $1.5 million dollars by a jury. The County challenged the trial court’s ruling that barred article 16 exemptions from the case. The trial court had determined that there was a domestic violence exemption to article 16 and that apportionment did not apply because the case involved an intentional tort. The appellate division reversed the judgment holding that none of the exemptions applied. The appellate court overturned the verdict and ordered a new trial.

Published on: April 19, 2012

Defendant Claims Officer did Not Have Probable Cause in DWI Arrest

by Stephen Bilkis

A police officer was patrolling along Route 404 on January 12, 2005 at 2am. He saw a car going very fast and it was heading toward him. The police officer’s radar unit registered the approaching vehicle to be going at 55 miles per hour when the speed limit in the area was only 40 miles per hour.

A New York DWI Lawyer said the police officer made a u-turn and followed the speeding vehicle. The car turned right on Shoecraft Road and took another left turn into the parking lot of a drugstore. The car did not immediately park. It took a while before the car came to a stop. The officer took out his gun and pointed it toward the direction of the man whom he ordered to get out of the vehicle.

The police officer patted him down to check for weapons. When he was sure that the man had no weapons on him, he put his gun back in its holster. It was then that he noticed the smell of alcohol on the man’s breath, his red bloodshot eyes and his slurred speech.

Published on: April 19, 2012

Defendant Contends Proceedural Violations during his Arrest

by Stephen Bilkis

Parole Officer One has been employed by the New York State Division of Parole since August 1993. She was assigned to supervise the parole of the defendant in July 2006. The defendant had been paroled on a burglary conviction. Upon his release, he had signed the conditions of parole which included his consent to a search of his residence, person and property and required him to fully and truthfully answer any inquiry by his parole officer or other representative of the Division of Parole. When Officer One first met with the defendant, the consent to search provision was reiterated to him and he reaffirmed his consent. A private individual gave his residence as 87 East 31st Street in Kings County. No previous searches had been conducted by Officer One at the defendant’s residence.

A New York Drug Crime Lawyer said the defendant, as a condition of his parole, was referred to a drug program in November 2006. In December 2006, and January and February 2007, the defendant tested “positive” for cocaine. On 15 March 2007, Officer One, in consultation with parole supervisors and Parole Officer Two, decided to do a home visit with the intention of doing a search. At that time, Officer Three was assigned to the “Targeted Offender Program” which was then doing visits in cases where the parolees, as the defendant, had been convicted of burglary.

On 16 March 2007, prior to conducting any home visits, Parole Officer Two met with other officers of the 67th Precinct Anti-Crime Unit who had been assigned to assist him in the execution of the home visits. Parole Officer Two had selected the parolees’ homes which would be visited and identified them to the police officers. He also told the police officers the number of people to expect at each home and the crime for which the parolee was on parole. Parole Officer One did not participate in the visit or search.

Published on: April 19, 2012

Court Determines if Probable Cause was Present for a Stop and Search

by Stephen Bilkis

At around 9pm on September 26, 1985, a police officer was on radio motor patrol. As he was driving around the area of the corner of 204th Street and 113th Avenue, the police officer observed two men standing at that corner and one of them handed to the other a plastic bag containing smaller plastic packets. A New York Criminal Lawyer said the plastic packets contained a white powder-like substance. This was not the first time the police officer had seen plastic packets with a powder-like substance in them. He knew from experience that this is the common packaging for angel dust or heroin.

The police officer parked his patrol car and exited it. As he approached the two men, he saw the one who received the plastic bag stuff the bag in his shirt pocket. He also smelled something burning. The police officer had prior experience and instantly recognized the smell of burning heroin.

As the officer approached, the two men walked away. The police officer called out to the man who received the plastic packets. The man turned around and walked back to the officer. At this time, the officer observed that the man walked stiffly as though his legs couldn’t be bent at the knees. He was uncoordinated and walked like a tin man. A New York Criminal Lawyer said his previous experience with heroin addicts signaled to him that the man was exhibiting behavior common to people under the influence of heroin.

Published on: April 19, 2012

Court Discusses the Legal Concept of Asportation

by Stephen Bilkis

On October 23, 1974, a resident of 272 Pennsylvania Avenue , in the County of Kings, stated that he returned home from work at about 12:05 AM. He stated that he parked his car in his parking spot and started to walk towards the side entrance of his building. He stated that as he approached the door, the defendant came out from behind another car and started to follow him. He stated that the defendant threatened him and he began to run. The defendant chased him and put a knife to his throat. He forced the man into the lobby of the building. Once in the lobby, the defendant removed the victim’s ring, watch and money from his wallet. They were in the lobby for about five minutes before the victim’s wife came in. The defendant told the victim that he was going to have to get him out of the situation.

A New York Criminal Lawyer said the defendant then forced the victim and his wife back out to their car by holding the knife to the victim’s chest. He forced them in to the car and drove away with the victim’s wife driving. The defendant told them that he had six or seven children that he could not take care of and that was why he was robbing them. The wife began to cry and he told her to pull over. He started to drive. He did not know how to drive and nearly hit a bus before stopping and taking the keys. He put them outside of the car near a pole and fled on foot. The couple was inside of the car with the assailant for about ten minutes.

The question of law is whether the ten total of 15 minutes being held by the defendant was enough to constitute the crime of kidnapping. There was also some discussion about whether the crime was actually a drug possession crime. New York maintains that if the holding of the person against their will is an integral part of the execution of a greater crime, then the crime of kidnapping is absorbed into the other crime and not charged separately. The question rests on a legal term called asportation. Asportation is the removing a person to another locality.

Published on: April 19, 2012

Court Decides if Medical Records are Hearsay in Domestic Violence Case

by Stephen Bilkis

The police received a 911 call from a woman who claimed to being beaten up by her husband. The police arrived at the scene within one minute of the 911 call and found that a husband was yelling and berating his wife. The man was standing over his wife who was cowered and hiding in between the furniture, hiding her face which appeared freshly bruised. She was crying.

A New York Criminal Lawyer said when the responding police officer asked her what happened, she said that her husband had punched her repeatedly in the head, the face and the back. She appeared to be bleeding from her left ear. She was in pain.

The police officer who responded executed a sworn statement stating the circumstances of his response to the 911 call. He stated that he found the couple in their home with the man standing over his wife who appeared to be in stress. She was crying and seemed to be in fear. When he asked what happened to her, she replied that her husband hit her and beat her up.