New York Criminal Lawyer Blog

Published on: April 3, 2012

Does the State’s failure to increase the compensation rates for assigned counsel violates the constitutional and statutory right to meaningful and effective representation

by Stephen Bilkis

A Lawyers’ Association filed for a rate increase to the State for their in and out of court work. The issue is whether the State’s failure to increase the compensation rates for assigned counsel violates the constitutional and statutory right to meaningful and effective representation.

A New York Criminal Lawyer said the court finds beyond a reasonable doubt that it does and results in obstructing the judiciary’s ability to function, and declares the law that set those rates are unconstitutional as applied. The court also directed the payment of $90 an hour without distinction between in- and out-of-court work, and without ceilings on total per case compensation, until the governing body acts to address the issue.

Based from the evidence, the grim reality that children and indigent adults in the State Family Court, Criminal Court, and Criminal Term of Supreme Court are at unreasonable risk of being subjected to a process that is neither swift nor deliberate, and fails to confirm the confidence and reliability in the system of justice. It is a direct result of the law-making body’s failure to provide adequate compensation to the assigned counsel. The right of a criminal accused party or Family Court complainant to interpose an attorney between himself and the State with its considerable power and resources is a cherished principle, zealously protected by the State courts. The State continues to ignore its constitutional obligation to the poor by failing to increase the assigned counsel rates that result, in many cases, in denial of counsel, delay in the appointment of counsel, and less than meaningful and effective legal representation. Accordingly, the court declares portions of section of the County Law, section of the Family Court Act and section of the Judiciary Law to be unconstitutional as applied. These statutes were enacted without a mechanism for automatic periodic increases, therefore requiring recurrent visitation by the law-making body. The initial rate set in 1965 of $15 an hour for in-court work and $10 an hour for out-of-court work has been increased twice to $25 and $15 in 1978, and $40 and $25 in 1985. The last increase was 17 years ago.

Published on: April 3, 2012

Court Rules on Domestic Violence

by Stephen Bilkis

A wife and her husband filed their individual action for the child custody of their twin son. The twins were in the Dominican Republic and it is undisputed that the father obtained a default order of custody there in 2002.

A New York Criminal Lawyer said a review of the documents of the Dominican proceedings confirms that the mother and father separated. At that time, in accordance to an agreement signed before the assistant to the prosecutor, the father consented to the terms of an order of protection, agreeing to refrain from assaulting the mother verbally or physically, and to vacate the family home until the mother was able to find other housing. He agreed to pay child support, and was given regular visitations as long as he behaves appropriately.

The mother left the Dominican Republic in December 1999, leaving the children with her mother and remarrying in June 2000. Five weeks later, while the mother was still in the United States, the father filed a claim for custody of the two children in the Court of the First Instance for Children and Adolescents. The maternal grandmother, who had physical custody of the children at the time, was named as offender in the matter.

Published on: April 2, 2012

Court Decides if Removal of a Child is Necessary in a Domestic Violence Case

by Stephen Bilkis

Three different women were physically abused by their intimate partners or husbands. These three different women all had children who were then living with them at the time that the domestic violence against the women occurred.

These three different women all asked the help of the police and the family court to stop the domestic violence. In all the three cases, the family court issued orders of protection.

In the same family court where these cases for domestic violence were pending, the Administration for Child Services (ACS) all intervened. ACS had a standing policy that all children were removed from the mothers who were victims of domestic violence because even as victims, they are also deemed to have engaged in domestic violence. The ACS contends that the battered woman is negligent when she allowed her children to witness the domestic violence committed against her. The ACS put all the children of these battered women in foster care.

Published on: April 2, 2012

Court Decides Jurisdiction Issue in Domestic Violence Case

by Stephen Bilkis

The parties met through the Internet in 2003, when the mother was studying veterinary medicine and the father was a teacher studying for a Master of Education degree. The parties married on 5 June 2004, in Kentucky. Six months later, the mother became pregnant, but continued her veterinary studies and graduated in May 2005. Upon graduation, the mother moved to New York, where the father joined her soon thereafter.

A New York Criminal Lawyer said that in September 2005, the mother gave birth, in New York, to twin daughters. On 31 October 2005, both parties and the children moved to Kentucky. In August 2006 the parties purchased a house in Kentucky.

In January 2007 the father commenced an action for divorce in Kentucky Family Court.

Published on: March 11, 2012

Defendant Charged with Robbery Claims They Did not have a Weapon

by Stephen Bilkis

Vincent Knowles was charged with one count of robbery in the first degree. He admitted in the hearing before the court that he did steal money, a wallet, jewelry and subway tokens from a Henry Laylock. He also testified that he placed his hand in his pocket, which looked like he had a gun so Mr. Laylock will give him his valuables. The fact was he was unarmed. He pleaded guilty to robbery in the second degree. A New York Criminal Lawyer said if a person displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm when he forcibly steals a property, he is guilty of robbery in the second degree according to the law.

The Trial Court had accepted Mr. Knowles plea, and the case was given to the Supreme Court Appellate Division for review. The Court of Appeals in their review said they need to be one to check if the letter of the law was correctly interpreted in this case. The law states a person who “displays what appears to be” a firearm during a robbery is guilty of robbery in the second degree. The focus they said is to be on the word appears instead of display. In this case, Mr. Knowles did not display anything as his hand was in his pocket during the robbery. In his testimony, he admitted he pretended it was a gun.

Before any revision to the Penal Law, the only law which pertained to firearms was with the robbery in the first degree, according to a Suffolk County Criminal Lawyer. This is when a person is armed with a dangerous weapon when committing a robbery. It was not defined by the unrevised law, but the court had always ruled to show the weapon needs to be working and loaded for it to be deemed dangerous. If the gun is inoperable and not loaded, it fell on the robbery in the third degree. So even in the previous statute, this was not a robbery in the first degree.

Published on: March 9, 2012

Defendant Contends Insufficient Evidence for Robbery Charge

by Stephen Bilkis

Stanley Hedgeman was accused of robbery in the second degree, and the Trial court had ruled he was guilty. Mr. Hedgeman appealed against this ruling, saying it should have been dismissed because there was insufficient proof presented to show he committed the robbery while “aided by another person actually present.” This was Mr. Hedgeman’s main argument.

The Court of Appeals said the question they are asked to answer is whether Mr. Hedgeman, whose only participation was to wait outside the bank and drive the getaway vehicle is guilty of robbery in the second degree. A New York Criminal Lawyer mentioned the court further asked if a person who the victims did not know or seen, be convicted of robbery in the third degree for the crime of aggravated robbery in the second degree? They said to determine this, they must first interpret the words of the law that says, “aided by another person actually present.” Does it mean a person who was physically there or anyone who was actively part of the robbery even if not where the crime happened?

In the trial, the only evidence that the people was able to present was the testimony of the police officer who conducted the interview of the one who did the robbery. The office said the driver was identified by the accused bank robber, and the two discussed the robbery before it happened. According to the court, this does not mean the driver was close enough to be actually present or adequately involved. The testimony of the assistant bank manager, said a Long Island Criminal Lawyer, only said that he saw the suspect get in a car, and someone else was driving. He was not able to identify the driver, so it could have been another person.

Published on: March 9, 2012

Defendant Contends They Did Not Carry a Weapon During Robbery

by Stephen Bilkis

On the afternoon of May 22, 2008, John Grant walked in Staten Island Bank. He went to the teller in one of the stations and gave a note that said, “I have a gun, Fill the bag. Don’t say anything or I’ll shoot.” A New York Criminal Lawyer said the teller, in her sworn statement, said she saw a firearm and just followed the instruction give to her. She got all the money in her station and placed it inside Mr. Grant’s bag. She handed the bag back to Mr. Grant, with $1,810 in it but kept the demand note. After Mr. Grant left, she locked the doors, and she informed the police of what happened. The police arrived at the scene and the detectives who responded took the video from the bank’s surveillance. They got still pictures from the video and after an investigation that lasted for four months, found Mr. Grant, and placed him in a line up for the teller to identify. The teller did identify him as the bank robber.

Mr. Grant filed an omnibus motion where he asked the court to dismiss the one count of first-degree robbery and on one count of grand larceny in the fourth degree. An omnibus motion is motions bundled together. He said it was not enough to say he was guilty of robbery in the first degree just because of the note, which said he was in possession of a weapon, that it was loaded, and it could be used against the teller. In the jury trial, the people said the possession of a dangerous instrument was not required in the determination of a first-degree robbery. The jury found Mr. Grant guilty of one count of robbery in the first degree and one count of grand larceny in the fourth degree.

The Supreme Court was asked to review the case, and in their examination of the transcript of the hearing affirmed the charge of grand larceny in the fourth degree. They also lowered the charge for the robbery from the fist degree to the third degree. A Brooklyn Criminal Lawyer said the mere statement of a person he has a gun, and he would shoot is not enough to support the charge for a robbery in the first degree, according to a New York Robbery Lawyer who read the decision of the Supreme Court.

Published on: March 8, 2012

Court Rules on Two Robbery Cases

by Stephen Bilkis

In two unrelated cases of robbery, the same question was asked of the Court of Appeals. The question is whether the evidence plus their display of what appeared to be guns while committing a robbery enough to charge them robbery in the first degree. The first case is the people vs. Lopez, and the second is the people vs. Mendez. A New York Criminal Lawyer said both defendants were convicted of robbery in the first degree, which they appealed.

In the case of Lopez, the robbery took place on a New York street. he was with another man when he approached the victim with two other companions and declared it was a stick up. What they demanded was the victim’s radio. In the victim’s testimony, he said when the robbery was announced, the defendant placed his hand inside his pocket, as if he had a gun. The victim gave his radio, after which the defendant and the other man went in a car driven by a third man to leave the scene. He knew the defendant because he had played basketball with him several years before. The day after the incident, the victim saw the defendant on the street and identified him to the police as the one who held him up. He was convicted of robbery in the first degree for what appeared to be a gun in his pocket and robbery in the second degree on the theory he did it with another person.

The Mendez’ case happened in The Bronx. Mr. Mendez was standing near another man who was seated and when he passed, he was grabbed by the defendant from behind and pushed against a wall. He testified that the defendant demanded for everything he had and took his watch, ripped the chain from his neck and took $80 from his back pocket. The other man who was seated had his right hand under his shirt while watching them. The victim said he heard Mr. Mendez say to the other man not to show the gun to him. According to what a Brooklyn Criminal Lawyer read, it happened some time while the robbery was taking place. In this case, the victim knew the defendant as he saw him at different times at a store near where he worked as well as by his tattoos.

Published on: March 8, 2012

Court Rules on Robbery That Resulted in Death of Victim

by Stephen Bilkis

The defendant was charged and convicted of two counts of murder in the second degree and two counts of robbery in the first degree. This was because he was part of a frustrated robbery where the victim died from a gunshot wound to the neck. One of the testimonies in the hearing said the defendant was part of a group of about fifteen teenagers. They approached the the victim, before he could enter a grocery store. It appeared that the defendant was known in the area for shoplifting and selling what he got. The group waited while he was in the grocery. The crowd moved to the bleachers of a recreation center nearby. One of the teenagers showed off a gun to the group.

Less than an hour later, six of the teenagers went back near the grocery store, and the defendant announced he was going to snatch the victim’s bag. Two of the six left, saying they did not want any part of it. A short time later, the defendant went out of the grocery store and along with his three other companions attacked the victim. The defendant was able to get free and hit the victim with a can while holding him against a wall. He then got his bag and said nothing will be taken from him. A shot was fired, said a New York Criminal Lawyer, and the defendant ran with his bag and the four on his heels. People said they heard about six to eight shots at around the time of the chase. The police did not find a bag with clothing, but found a knit hat and sweatshirt near the grocery store.

The defendant argued that it is impossible to have an attempted robbery in the first degree because one of the requirements is an unintended result of causing physical injury when a robbery is committed. They said that the attempt to commit a crime with an unintended result is not recognized by the law. The court changed the charge to attempted robbery in the third degree.

Published on: March 7, 2012

DWI Defendant Contends Mistaken Identity

by Stephen Bilkis

A man was stopped at the street for failing to wear a seat belt and operating a vehicle with a cracked front windshield. Upon approaching the vehicle, the police officer noticed that the driver have a glassy eyes. The driver responded to the questions of the police officer with a slurred speech and an odor of alcohol emanated from him. After the man failed the standard field sobriety tests, the police arrested the driver for DWI.

A New York Criminal Lawyer said charges against the driver took place and the bail was set and posted. Subsequently, the man came forward and claimed that he did not drive the vehicle which was stopped by the police officer. The man also claimed that his brother used his license and identity. The man submits an affidavit which indicates that he learned of his brother’s arrest when tickets turned up in the man’s mailbox a couple of days after the arrest. The brother of the man called him a couple of days later according to the affidavit submitted. The brother of the man also advised him that he used the license and was arrested for DWI. While no evidence of identity is offered in support of the motion to dismiss the man, the jury concedes that the man did not operate the vehicle and that his brother did. The acknowledgment by the prosecution of the identity of the driver followed initial findings of the present motion. The initial findings ordered a trial to determine that the man did not operate the vehicle in question and was not arrested due to ambiguities in the submitted papers. The prosecution accepted the point rather than proceed to trial. The decision on the merits of the legal action is rendered.

The overlap of the naming of the man as the accused while charging the person of the man’s brother with violating Vehicle and Traffic Law makes the man an wronged person whose privileges to legally operate a motor vehicle have been suspended. The man therefore has the right to challenge the prosecution with his name, his driver’s license and his identity. A New York Criminal Lawyer said that without the right to come forward and reveal the false use of an identity, the man is plagued with the misdemeanor and with potential effects of a conviction. Prosecuting the brother of the man essentially leaves the brother to invest only his time while the man receives the penalties accruing by fines, suspension and revocation of his license.