New York Criminal Lawyer Blog

Published on: April 16, 2012

Court Rules Because of Proceedural Error, DWI Defendant gets New Trial

by Stephen Bilkis

Two police officers saw a car moving erratically. When they stopped the car, the lady driver refused to exit her car. A New York DWI Lawyer said the police officers heard the woman’s slurred speech and smelled alcohol on her breath and concluded that she was very intoxicated.

The police officers also saw that aside from the lady driver, there was an adult passenger with her and an 11-month old child in a car seat. The police officer called Social Services to take custody of the 11-month old child.

A New York DWI Lawyer they then arrested the lady driver and brought her to the station. They asked her if she wanted to take the breathalyzer test but she refused. The arresting officers told her the consequences of not taking the breathalyzer test: that her refusal will be entered into the record and will be used as evidence against her. But she still refused.

Published on: April 16, 2012

Defendant Contends Evidence from Previous Trial Should Not be Admitted

by Stephen Bilkis

Defendant was charged of the felony of possessing a quantity of a narcotic drug, heroin, or heroin possession, with intent to sell; a drug crime. A New York Criminal Lawyer defendant had pleaded guilty to an attempt to commit the crime charged (criminal law) and, with the court’s consent, had withdrawn such guilty plea and substituted a plea of not guilty. Defendant was then convicted by a jury in Queens County Court.

Although defendant as his own witness at the trial denied his guilt, he does not now dispute that the People’s proof was enough for conviction. However, defendant does press on the herein court the point made by the dissenting Appellate Division Justices that it was injustice and error to lay before the jury as evidence of his guilt his earlier plea of guilty which the court had allowed him to withdraw.

The issue here is whether or not a plea of guilty withdrawn by leave of court is admissible against the defendant on the trial of the issue arising on a substituted plea of not guilty.

Published on: April 16, 2012

Court Determines if Drug Charges will Effect Immigration Status for Defendant

by Stephen Bilkis

On 22 November 2006, defendant stood accused, by felony complaint filed, of criminal possession of marijuana in the first degree, a class C felony (drug crime); on account of an incident that occurred on 21 November 2006. At his 22 November 2006 arraignment, the court conditionally released defendant, to the supervision of the Department of Probation, and adjourned the case to Part 9, which thereafter transferred the case to County Court. On 25 January 2007, the case was returned to Part 9 of the herein court, and adjourned to 20 March 2007. On 20 March 2007, the court revoked defendant’s conditional release status, evidently because of his failure to participate in therapy as directed by the Department of Probation, and because of his arrest on 18 February 2007 for assault in the third degree. The court fixed bail at $25,000 bond, $15,000 cash and adjourned the case for three days, to 23 March 2007, for disposition. Defendant did not post bail.

A New York Drug Crime Lawyer said according to the transcript of a joint plea proceeding conducted on 23 March 2007, another individual was arrested with defendant, also for felony possession of marijuana on account of the incident on 21 November 2006, and both defendant and the other individual were represented from the outset by a lawyer. During the course of the single plea proceeding conducted on 23 March 2007, the court converted the felony complaint pending against defendant, and the felony complaint pending against the other individual, to accuse each of misdemeanor possession of marijuana. No supporting deposition demonstrating that scientific tests were performed on the substance forming the basis of the prosecution is annexed to the converted document, designated as a misdemeanor complaint, has been filed against defendant. Moreover, by the factual part of the document, the complainant attests only that defendant “possessed” more than 10 pounds of a “greenish brown leafy substance believed to be marijuana,” and that “the arresting detective who recovered the evidence believes the substance to be marijuana based on his years of training as a police officer and detective, its appearance, color, odor and texture and its packaging which is commonly used by drug dealers. But while the other individual pleaded guilty to the lesser charge of disorderly conduct, defendant pleaded guilty to violating the Penal Law of possessing more than two ounces of marijuana, the crime of which he then stood accused. The court sentenced each to a conditional discharge and the maximum fine permissible for the offense to which each pleaded guilty.

Neither defendant nor the other individual waived the right to be prosecuted by information when arraigned on the converted accusatory instruments immediately before entering their pleas of guilty. A New York Drug Possession Lawyer said during the course of the joint plea allocution, the court asked defendant and the other individual if they consented to one attorney representing both of them. Each answered “yes.” The court then asked if there is no conflict of interest in any way. Each responded “no.” When both were asked if they had discussed the case with their attorney before pleading guilty, each answered “yes”. Following questioning about educational background and mental status, defendant stated he has a fifth grade education; the other completed high school. The court asked defendant if he understood that he was pleading guilty to a crime, that he would have a criminal record, and that the crime is punishable by up to a year in jail, a fine, or a combination of both, and the defendant responded “yes.” Defendant also answered “yes” when the court asked if he understood that, by pleading guilty, he was also waiving his right to a trial and his right to appeal. Oddly, when the court asked “do you wish to plead guilty to a crime,” defendant and the other individual each answered “yes.” Ultimately, defendant admitted that on 21 November 2006, he possessed marijuana, the weight of which was not specified. A Nassau County Drug Possession Lawyer said the other individual admitted that he behaved in a disorderly manner on that date. As noted, the court sentenced each to a conditional discharge and a fine. Other than noting his appearance, joining in the People’s application to reduce the charge, waiving a reading of the new charge, and, at the conclusion of the proceeding, addressing defendant’s bail status, defendant’s counsel (for the plea) stated nothing on the record. Included in the court file is a certificate of relief from civil disabilities, based on an application defendant made on 6 November 2008, by which he specifically sought a certificate that will relieve him from any bars that would prevent him from traveling.

Published on: April 16, 2012

Sex Offender Bring Case to Court Over Being Denied Housing Assistance

by Stephen Bilkis

A man was convicted of sex crimes, including rape, sodomy and sex abuse. He was sentenced to concurrent prison terms of six to eighteen years for the rape and sodomy convictions and two to six years for the sex abuse convictions. According to the State Division of Criminal Justice Services website, he is designated as a Level 2 sex offender who is subject to lifetime registration under the State’s sex offender registration program. A New York Sex Crimes Lawyer said the man is an inmate at a Correctional Facility, where he returned for violating parole after having been previously released from prison.

By letter, the man requested that the State Housing Authority provide him with an application for housing and an application for a Section 8 certificate. In the letter, he claimed that he was disabled, homeless and currently incarcerated, but that upon his release in the near future he would be in need of housing. A New York Sex Crimes Lawyer said the State Housing Authority responded by a letter enclosed with the Guide to Applying for Public Housing, a public housing application and a Guide to Section 8 Housing Assistance. The letter stated that no Section 8 application was enclosed because The State Housing Authority was no longer accepting Section 8 Program applications since the waiting list had been closed since May 15, 2007 except to applicants that met certain emergency criteria.

The Section 8 Housing Assistance Program is a federal program administered by local public housing authorities (PHAs); the State Housing Authority administers the program. The Section 8 Program is a voucher program that makes housing more affordable to very low-income families by subsidizing private landlords, thus allowing the families to obtain housing at below market prices. The United States Department of Housing and Urban Development (HUD) provides funding for the Section 8 Program to the local PHAs. There are two categories of housing assistance in the Section 8 Program: tenant-based and project-based. In the tenant-based assistance, families choose where they want to live, and if the unit is approved by the local PHA, the PHA contracts with the owner and makes rental subsidy payments on behalf of the family. In the project-based assistance, the subsidies are paid by the PHA to assist families in specific housing developments.

Published on: April 16, 2012

Court Determines if Evidence Submitted by Defendant is Inadmissable

by Stephen Bilkis

A husband moved an action against his wife’s lawsuit to take a statement to be offered in court on his behalf by issuance of a request letter. The wife opposes the application of motion.

It started when a wife alleges that she was a victim of domestic violence committed by his husband. However, the husband moves for a letter requesting for information to take the statement of the wife’s sister. The husband argues for his sister-in-law’s granted permission for the recorded telephone conversation between his wife and his sister-in-law at which time his wife made certain admissions. The husband asserts that the recorded conversation contains statement which is necessary for the trial on the issues of custody and domestic violence.

A New York Criminal Lawyer said the husband asserts that a letter is requested because the prospective witness, his wife’s sister, resides in another country and therefore is not within the jurisdiction of the court. The counsel further stated that the wife’s sister is physically unable to travel to testify at the time of trial because she is suffering from a blood clot in her lungs. Further, the counsel neither annexed an affidavit by a person with actual knowledge nor certified medical documentation supporting the counsel’s assertion.

Published on: April 16, 2012

Court Claims Jurisdiction in Domestic Violence Matter through IDV Courts

by Stephen Bilkis

A man was charged with the offense of harassment in the second degree. Subsequently, the court issued an order of protection directing the man to stay away from the complainant and refrain from harassing, intimidating, threatening her, or committing any acts of domestic violence. After that, a misdemeanor charge of criminal contempt in the second degree was commenced against the man alleging a violation of the order of protection. Consequently, the man initiated a matrimonial action against the complainant.

A New York Criminal Lawyer said the court having been assigned to the related matrimonial action, determined that it would promote the administration of justice to transfer to the Integrated Domestic Violence (IDV) part the charges pending against the man in the district court and by the order the district court, the matters were transferred to the IDV Part.

The man now moves for an order to dismiss the district court cases for lack of subject matter of authority. The man alleges that criminal procedure law mandates the dismissal of the cases transferred from the district court. The man’s motion is determined. A Westchester County Criminal Lawyer said the discussion of the man’s contentions begins with an assessment of the legal authority of the courts.

Published on: April 15, 2012

Court Rules on Robbery Case

by Stephen Bilkis

In cases that involve more than one victim, juries, and sometimes judges can become confused and issue verdicts that are not in accordance with the law or with good common sense. A case that was adjudicated in the Supreme Court of Nassau County on September 3, 1975 is one such case. The incident was fairly straight forward. This incident occurred on October 22, 1969 at a jewelry store that was owned and operated by one man.

A New York Criminal Lawyer said he frequently purchased items from other people and sometimes took in items on consignment. On the date of this incident, he had in his safe a diamond ring valued at $12,500 that he had taken in on consignment for another man. While he was in the shop that day, two men came in to the store to look at watches. They left without making a purchase. They had seen the owner go to the back of the store to retrieve a watch to show them from the safe. On his way back out to the front of the store, he failed to shut the safe or re-secure the dividing door that was usually locked between the front of the store and the office where the safe was located.

A while later, the two men returned to the store and produced a .45 caliber gun and ordered the owner to comply. A said the owner fought with the men and was struck on the head during the altercation with a hard object that he could not identify. He fell down near the panic button for his alarm. He pushed the alarm and passed out. When he came back to consciousness, he was handcuffed an in the back of the store. The attackers beat him again. He struggled to get free and he reached for the gun. Somehow the gun was fired and the jeweler was knocked unconscious again.

Published on: April 15, 2012

Defendant Alleges Inadequate Miranda Warning for DWI Arrest

by Stephen Bilkis

There are many issues involved in any driving under the influence case that goes to court. Among them is the importance of delivering the refusal warnings correctly. If the refusal warnings are not given correctly, the evidence of the refusal cannot be used in court. This can create a situation that prevents the officers from being able to make an adequate case for DUI. In New York, the officers often use a videotaped warning for persons who are suspected of DUI who speak Spanish. Normally, this is an effective way to ensure that people who do not speak English are able to understand the warnings as well as the repercussions of a refusal.

A New York DWI Lawyer said however, problems can arise when a suspect does not behave in a predictable manner. In one case, which occurred in New York on January 14, 1998, Vice-officers were engaged in a prostitution sting. It was set up near East 242nd Street and White Plains Road in the Bronx. The defendant, who only spoke Spanish, was arrested when he drove up to an undercover police officer and offered her $20 for a sexual act. She notified her back up officers. When the arresting officer stopped the defendant, he approached the driver, who was the defendant. He noticed that the defendant exuded a strong odor of an alcoholic beverage from about his person, his eyes were blood-shot and glassy, and his speech was slurred. The arresting officer asked the defendant to exit the vehicle. When he attempted to exit the vehicle, he fell out of it face first. He was transported to the precinct where he was shown the Spanish language implied consent warnings. After the first section that ends with the question of whether the defendant would submit to the test, the tape was stopped. The defendant responded in a non-committal manner. He was rambling and uttering nonsense. After several attempts to get a sensible answer out of the defendant, the officer gave up and turned off the video tape of both the Spanish warnings, and the entire arrest.

When the refusal case was taken to court, one of the first problems was that the warnings were not completed. A New York DWI Lawyer said the second part of the tape that explains the repercussions of refusal was never played for the defendant. his failure effectively established that he had not been given the warnings correctly. That meant that the jury, in court, could not view any portion of the video of his arrest that concerned his refusal to take the test.

Published on: April 15, 2012

Defendant Argues that Search of Vehicle was Illegal

by Stephen Bilkis

Whenever evidence of a crime is discovered by police during an inventory search of a person’s vehicle, it is subject to scrutiny. Inventory searches are administrative searches. That means that the police department or agency maintains documents in their standard operating procedures manual that indicates that an inventory of an arrested person’s vehicle will be performed incident to that arrest. A New York Drug Crime Lawyer said the reason for inventory searches is that people often make allegations that items are missing from their vehicles. The inventory of the person’s vehicle incident to their arrest is to determine what exactly is in the vehicle. Anything that appears to be valuable needs to be removed and placed into evidence or property so that the person can re-claim their valuables upon getting out of jail. The police department is protected from allegations of theft, and all valuables are protected for the individual.

However, in many cases, illegal items, narcotics, open alcoholic beverage container, stolen credit cards, and other items are located during the inventory of a vehicle. It is at that point that the officer must be able to prove that the search was an administrative search and not a search for contraband. That is why it is important for police officers to have their procedures documented.

In a case that was decided before the Supreme Court of New York County on November 18, 2009, a defendant who was charged with one count of Criminal Possession of a Weapon in the second degree and with driving under the influence of alcohol. A New York Drug Possession Lawyer said he man was arrested following a traffic stop. The officer stated that he observed a Lexus pulled up to a fire hydrant. There was a white male behind the wheel of the car. When the officer pulled up, the man got out of the car and approached the officer. The officer stated that the man’s eyes were glassy and bloodshot, he exuded a strong odor of an alcoholic beverage from about his person, and he was unsteady on his feet.

Published on: April 15, 2012

Court Says Evidence is Protected by Common Law Victim-Counselor Privledge

by Stephen Bilkis

A woman charged a man with criminal action of various felonies arising from alleged domestic violence. A non-profit corporation has moved to quash a subpoena issued by the District Attorney to provide the address and telephone number of the complainant of the criminal action. The non-profit corporation asserts that in accordance to the Social Services Law and the regulations promulgated under it, the non-profit corporation is prohibited from releasing to the District Attorney the actual address where the resident is being sheltered. In addition, it argues that the information sought is also shielded by a common-law victim-counselor privilege.

A New York Criminal Lawyer the motion to quash is denied. Section of the Social Services Law states that the street address of any residential program for victims of domestic violence applying for funding pursuant to this article shall be confidential and may be disclosed only to persons designated by rules and regulations of the department. At the same time, section of the State Code of Rules and Regulations provides for the confidentiality of facility addresses as each program must maintain a business mailing address separate and distinct from the actual address where residents are sheltered. When releasing the address of any resident, programs must release only the business address of the program and not the actual address where the resident is being sheltered.

On the other hand, section of the State Code of Rules and Regulations provides for access to confidential information pursuant to an order by a court of competent jurisdiction. The non-profit organization argues that the specific prohibition of the State Code of Rules and Regulation limits the broad disclosure permitted pursuant to a section of the said Code.