New York Criminal Lawyer Blog

Published on: September 15, 2014

Ex Post Facto Clause of the United States Constitution

by Stephen Bilkis

This is a proceeding wherein the Attorney General of the State of New York filed a petition on 19 July 2010 contending that Criminal Respondent RV is a detained sex offender who has a mental abnormality as that term is defined in Article 10 of the New York State Mental Hygiene Law, § 10.03, such that Respondent should be confined or supervised by the Office of Mental Health once his prison sentence is completed.

On 7 February 2011, Respondent filed a motion to dismiss the petition contending that he was not convicted of any sex crime and that the provision in Article 10, Section 10.07(c) that would allow a jury to determine whether Respondent’s robbery and attempted robbery convictions were “sexually motivated” is unconstitutional in that it violates the Ex Post Facto Clause of the United States Constitution. Respondent asserts that Section 10.07(c). The relevant provision of the criminal statute and its concomitant definitional paragraphs serve to retroactively transform a non- sex crime into a new “sexually motivated felony” and that it increases the punishment for the prior crime.

The court denies respondent’s motion to dismiss.

Published on: September 12, 2014

Constitution of the State of New York

by Stephen Bilkis

In the latter part of 1992 and during the beginning of 1993, the office of the United States Attorney for the Southern District of New York was inquiring into allegations that substantial sums of money had been stolen from a certain Royalty Trust (the “Trust”), which fund was established to benefit the citizens of a certain Republic (the Republic). In connection with this criminal investigation, in February 1993, an investigator for the U.S. Attorney’s Office (the “US Investigator”), served “Y”, a resident of California, with a grand jury subpoena. Although Y did not ultimately testify before a federal grand jury, he took part in approximately four debriefings with federal prosecutors and investigators in the Southern District during the latter part of February and March 1993.

After one such debriefing on March 5, 1993, at the request of the U.S. Attorney’s Office and under the direction of US Investigator, Y telephoned defendant, an attorney residing in Florida. US Investigator recorded this call in the presence of, Y’s attorney at the time, Assistant U.S. Attorneys (hereinafter “AUSA”) A and B, and FBI Agent H. The federal authorities proposed making this call to defendant in Florida in an attempt to obtain information on past allegedly criminal activities involving the disappearance of Republic’s money and to gather information respecting what they believed to be on-going criminal behavior in connection with the solicitation of so-called “prime bank notes” and “standby letters of credit”. A review of the transcript of the taped conversation between Y and defendant reveals that both past and on-going activities were discussed during the call.

While that the federal government was investigating the Republic Trust matter, a civil litigation–initiated to recover Republic’s allegedly stolen money–was underway in the High Court of Justice in London. As part of this civil action, both defendant and Y were subpoenaed to give testimony in late December 1992. Shortly thereafter, Y talked with defendant about obtaining legal representation. Y learned that defendant had retained an attorney (the “Attorney”), a member of the Florida bar, to represent him in connection with the London litigation. Y could not specifically recall how defendant described the nature of Attorney’s representation, but he did remember that defendant spoke of the possible need for a criminal defense attorney in connection with the Republic Trust matter. Defendant also advised Y that if he needed a computer fraud lawyer, he should contact Attorney for a referral.

Published on: September 11, 2014

Paragraph Ten of the Bill of Particulars

by Stephen Bilkis

This is a proceeding wherein the respondent, P, a 14 year old female was alleged, inter alia, to have offered to perform a deviate sexual act for U.S. currency, an act which, if committed by an adult, would constitute the crime of prostitution under Penal Law Section 230.00, a class B misdemeanor. P is before the court on the complaint of D.

The court notes that D was not charged with the violation of patronizing a prostitute, P.L. § 230.05 nor was he charged with any other crime applicable to these facts.

Paragraph Ten of the Bill of Particulars of the Corporation Counsel describes the incident as follows:

Published on: September 8, 2014

Court reasoned that indecent assault is a federal felony

by Stephen Bilkis

A New York Criminal Lawyer said that, ten years ago, the Legislature enacted the Sex Offender Registration Act (SORA), which required certain sex crime offenders to register with the Division of Criminal Justice Services within 10 calendar days after discharge from incarceration, parole or other release. The legislation created procedures to weigh the threat posed by the offender’s release and classifications geared to the offender’s risk level. SORA contemplates three levels of risk, from level one (the lowest) to level three, with reporting requirements increasing for each level. A five-member Board of Examiners of Sex Offenders is charged with the responsibility for developing risk assessment guidelines and recommending to a sentencing court the risk level involved upon the release of an offender.

A New York Sex Crimes Lawyer said that, pursuant to Correction Law § 168-a (2)(d), certain defendants convicted of sex offenses in other jurisdictions must register as sex offenders in New York. The case before us involves the application of this subsection to defendant’s United States Navy court-martial, following which the Board recommended, and County Court determined, that he be classified a level two sex offender under Correction Law § 168-a (2)(d)(ii). A New York Criminal Lawyer said that, defendant was convicted in 2000 by a general court-martial under a generic provision in the Uniform Code of Military Justice prohibiting, among other things, “all conduct of a nature to bring discredit upon the armed forces”. Within the general statutory provision, defendant seems to have been convicted of the specific regulatory offense of “indecent assault.” The Navy apparently sentenced defendant to a bad conduct discharge and reduction in pay grade, but no fine or term of imprisonment.

The issue in this case is whether the jurisdiction where defendant was convicted of a felony required registration as a sex offender for that crime.

Published on: September 8, 2014

Code of Criminal Procedure

by Stephen Bilkis

The surety herein applies for an order under sections 597 and 598 of the Code of Criminal Procedure remitting the forfeiture of cash bail deposited by her for and on behalf of the defendant, who was theretofore charged with disorderly conduct in violation of subdivision 8 of section 722 of the Penal Law.

A New York Criminal attorney said that the facts explaining and excusing the defendant’s failure to appear for a hearing on April 30, 1953, have been fully set forth in the moving papers and warrant the exercise of discretion by this court in remitting the forfeiture of the bail deposit heretofore made by the surety if this court has the power to order such remission.

Upon the argument of the appeal, and in answer to the court’s inquiry as to why this motion was not made in the County Court of Queens County, the court was informed that that court had refused to entertain applications for remissions of forfeitures not originating in that court.

Published on: September 7, 2014

Designated Felony

by Stephen Bilkis

A New York Criminal Lawyer said that, the Respondent is the subject of a petition for sex offender civil management pursuant to Sex Offender Management and Treatment Act. He moves here to dismiss the petition on the basis that certain provisions of the statute as applied to him are violative of the United States and New York State constitutions.

A New York Sex Crime Lawyer said that, on May 3, 1995, the Respondent was sentenced in New York County Supreme Court for convictions of Kidnapping in the Second Degree, Promoting Prostitution in the Second Degree and Bail Jumping in the First Degree. He received concurrent indeterminate sentences of 9-18 years’ incarceration on the kidnapping charge, 4-8 years on the promoting prostitution charge and 3-6 years on the bail jumping charge. According to the State, Respondent’s kidnapping and promoting prostitution charges included conduct in which he restrained the victim, repeatedly raped her, forced her to engage in prostitution, beat her and forced her to ingest narcotics. These acts allegedly occurred in 1992. The Respondent also has prior convictions for unlawful imprisonment, attempted assault and forcing a person to engage in prostitution.

A New York Criminal Lawyer said that, a sex crime offender civil management petition was filed in Greene County Supreme Court on December 3, 2009 and an amended petition was filed in New York County Supreme Court on December 18, 2009. The Respondent was in DOCS custody pursuant to his sentence at the time of the filing of the initial petition and has been in DOCS or OMH custody since that time. On February 17, 2010, Acting Greene County Supreme Court Justice found that there was probable cause to believe that the Respondent was a detained sex crime offender who suffered from a mental abnormality. The venue of the instant proceeding was subsequently transferred to this Court where the Respondent is awaiting trial.

Published on: September 7, 2014

People v Moore, People v Doyle

by Stephen Bilkis

This is a proceeding wherein the defendant is charged with the felony of Sexual Abuse in violation of Section 130.65 of the Penal Law and the misdemeanor of Assault, covered by section 120.00 of the Penal Law.

At a preliminary hearing the complainant, RM, testified that she had hitchhiked her way to New York from Montana where she had been employed as a waitress. Her purpose in coming to New York was to visit a male friend who had been hospitalized. At her friend’s urging she slept in the apartment of the defendant, an acquaintance of her friend, on the night of her arrival, and again some three nights later. On the first occasion, she testified that the defendant slept on a separate mattress in the apartment. She did some cooking and cleaning each day following the first night, but did not sleep there again until three nights later when she awoke to find the defendant fondling her. She repelled his advances thus apparently angering the defendant who then beat her about the head and body.

The complainant asserts she was treated at a hospital for her injuries, but the People offered no proof of such treatment or, for that matter, any evidence whatever to corroborate the complainant’s account.

Published on: September 4, 2014

225.05 and 225.30 of the Penal Law

by Stephen Bilkis

Numerous defendants were arrested in a series of raids in Chinatown, carried out by police officers armed with search warrants.

A New York Criminal lawyer said that the amended informations charge the defendants with the crimes of promoting gambling and possession of gambling devices in violations of sections 225.05 and 225.30 of the Penal Law, in that each defendant acted as a ‘Dealer,’ ‘Cutter,’ ‘Manager/Moneyman’ or ‘Security’; listing the gambling activities as ‘Poker,’ ‘Fantan’ and ‘Dominoes.’

In these omnibus motions the defendants move to dismiss the accusatory instruments upon the grounds (1) the specified gambling statutes are unconstitutional, and (2) the ‘People are guilty of selective and discriminatory prosecution.’ In the alternative the defendants move for (a) a preliminary hearing pursuant to section 170.75 of the Criminal Procedure Law, and (b) the suppression of the evidence seized.

Published on: September 2, 2014

Fourth Amendment issues

by Stephen Bilkis

While on patrol in a marked radio car with a fellow officer, a police officer received a radio run reporting shots fired in the vicinity of 142nd Street and Rockaway Boulevard. Arriving at the scene within approximately two minutes, the police were waved down by a man. The latter reported that a friend had attempted to shoot him three times but the gun failed to fire. The police were directed to what was apparently the only apartment on the second floor of a building located at 142-90 Rockaway Boulevard.

A Queens County Gun Crime attorney said that the officer and other officers went to the apartment on the second floor, and upon discovering the door partly open, the officer, with gun drawn, announced that the police were there and were coming in. Upon entering the apartment, the officer observed an older woman in the living room, and he observed criminal defendant and another man emerge from a bedroom, approximately 12 to 15 feet away from the point of the officer’s entrance into the premises. Both men were put up against a wall and frisked. Neither was found to be in possession of a weapon. The man, having entered the apartment, identified defendant as the person who had attempted to shoot him. Defendant was arrested and handcuffed, and the second person who had emerged from the bedroom was released.

The Criminal Term concluded that the warrantless entry into the subject premises violated defendant’s constitutional rights pursuant to the dictates of a jurisprudence. The gun and the statements were suppressed as “Fruits of the Poisoned Tree”. The gun was also suppressed on the independent ground that “the defendant and the premises were secured at the time by four armed police officers who had ample opportunity to obtain a search warrant. “

Published on: August 30, 2014

Order of Protection should not have been issued in this case

by Stephen Bilkis

Defendant and complainant are husband and wife. Immediately prior to his arrest, defendant and his wife were staying in separate cooperative apartments, each jointly owned by them, in the same apartment building in Manhattan. The larger of the two apartments was the couple’s marital home, while the smaller served as the wife’s office. As a consequence of severe marital conflict between them, the wife was temporarily sleeping in her office, but had access to the larger apartment during the day. The defendant husband continued to occupy and sleep in the larger apartment.

A New York Criminal Lawyer said that, defendant was arrested on June 24, 1988 and charged with Assault in the Third Degree, and with Harassment, on the complaint of his wife. According to the June 24 complaint of Police Officer corroborated by the complainant wife on the same day, defendant, with intent to cause physical injury and to harass and annoy his wife, had punched her in the face and knocked out one of her teeth. The alleged assault and harassment occurred after the wife had returned to sleep in the larger apartment and refused to let the husband in.

A New York Domestic Violence Lawyer said that, at his arraignment on June 24, 1988, defendant was represented by counsel, and with the consent of the People was released on his own recognizance. At the arraignment, the People requested, and the court issued, a Temporary Order of Protection, effective until July 17, 1988, unless further extended by the court. No argument was heard, or testimony presented, either in support of or in opposition to the issuance of the TOP. The Temporary Order of Protection, issued on the officially prescribed form used for this purpose in the Criminal Court for the City of New York, directed defendant as follows: (a) to stay away from the home, school, business or place of employment of the complainant; (c) to abstain from offensive conduct against the complainant; (d) to refrain from acts of omission or commission that tend to make the home not a proper place for the complainant. The effect of this Temporary Order of Protection was to exclude the defendant from both of the couple’s apartments, since one was arguably the complainant’s home and the other her office.