New York Criminal Lawyer Blog

Published on: August 27, 2014

Sex Offenders of the State of New York

by Stephen Bilkis

This is a proceeding wherein the petitioner, DK, petitions for an order and judgment, pursuant to CPLR 7801-7806, annulling and vacating the 25 January 2011 final determination of respondent Board of Examiners of Criminal Sex Offenders of the State of New York on the grounds the determination was arbitrary and capricious, was affected by error of law and involved an abuse of discretion.

The court dismisses the petition.

The petitioner claims that his Florida nolo contendere plea to the crime of indecent assault under former Fla Stat § 800.04[3] for which the court withheld adjudication and entered an order of supervision placing petitioner on sexual offender probation for four years, does not constitute a conviction for purposes of the Sex Offender Registration Act and that, as such, the Board erred in determining that petitioner was required to register under SORA.

Published on: August 26, 2014

The defendant may have been attempting to strike up a conversation with a female

by Stephen Bilkis

In one evening, a Detective, who was assigned as backup to an undercover police officer who was attempting to buy controlled substances at a social club. There is no evidence in the record that the undercover officer was able to achieve that objective. However, at 8:00 P.M., the undercover officer advised the Detective by radio transmission that a tall white male with a pony tail approached her inside the social club and asked her “if she wanted to take a hit of cocaine”.

A Queens County Criminal attorney said that approximately six hours after the defendant asked the undercover officer if she wanted a “hit” of the drug cocaine, the undercover officer left the social club, and the Detective and other police officers arrived at the social club. The police directed its occupants to leave, and “stopped” and searched the defendant and “everybody when they came out”. The Detective recovered a packet of cocaine from the defendant’s jacket pocket and a .38 caliber automatic gun from the defendant’s boot.

It is unclear from the record whether the defendant was arrested before or after the search. Our dissenting colleague’s conclusion that the defendant was “the first of seven patrons to be arrested and searched”, is based upon a statement of the defendant’s attorney made upon “information and belief” during colloquy. During subsequent colloquy, the defense counsel stated, also “on information and belief”, that the undercover officer was a “very beautiful” woman, and that the defendant “could have been just trying to pick her up”. Clearly, neither of these representations constituted evidence.

Published on: August 25, 2014

People v. David W.

by Stephen Bilkis

This is a proceeding wherein the defendant moves pursuant to CPL 440.10 to vacate his judgment of conviction on the grounds that, unbeknownst to criminal defendant, the complainant had recanted her accusation both to the court and the district attorney’s office prior to the entry of defendant’s plea of guilty, and the prosecutor’s failure to disclose this information constituted a Brady violation, that such recantation constitutes newly discovered evidence warranting vacatur of the conviction, that criminal defendant’s plea of guilty was involuntary because he was not aware that he would be required to register as a sex offender and that his counsel was ineffective in that he prevented the judge at arraignment from dismissing the charges.

The People assert that, in preparing their response to the motion, they learned that the files of the District Attorney’s office pertaining to this case have been destroyed, and the court file has been lost and is therefore unavailable. The People were, however, able to obtain the pre-sentence report. The People’s affirmation is based on information from records and files of the New York State Division of Parole, the New York City Police Department, the Florida Sex Offender Registry, the United States Attorney’s Office for the Southern District of Florida, and upon conversations with individuals from the U.S. Attorney’s office, the NYS Office of Sex Offender Management and the NYS Department of Correctional Services.

In April 1976, the defendant was charged with rape in the first degree and sexual abuse in the first degree. The defendant, who was then 24 years old, had known the complaining witness, then 20 years old, for several years. On 24 April 1976, at the complaining witness’s home, following a visit with the complainant’s family and defendant’s mother, the defendant had told the complainant that he wanted to have sex. Upon her refusal, he forced her to engage in intercourse. Thereafter, the complainant was later taken to Brookdale Hospital for examination. She was negative for the presence of semen. On 28 April 1976, the complaining witness identified defendant to the police in front of the complaining witness’s home. The defendant was arrested. In statements following his arrest, defendant admitted having had intercourse with the complainant but denied having used force. He claimed that the complainant had been angry over the fact that defendant had been seeing another woman.

Published on: August 24, 2014

RCNY, Title 38, and Chapter 12

by Stephen Bilkis

According to the Property Clerk’s invoices, on May 15, 2008 and May 19, 2008, Detective YL of the New York City Police Department’s Major Case Squad seized from Petitioner various items of property and classified them as Investigatory under Property Clerk’s invoices P002313, P002358, P002361, P002363, P002364, and P002360, hereinafter the subject property. According to respondents, Petitioner was arrested by Detective YL on July 17, 2008, and charged with violating New York Penal Law Sections 155.40, Attempted Grand Larceny in the Second Degree; 190.80, Identity Theft in the First Degree; 170.10 Forgery in the Second Degree; 155.35 Grand Larceny in the Third Degree; 190.26(1), Criminal Impersonation in the First Degree; 190.26(2), Criminal Impersonation in the Second Degree; and 155.30, Grand Larceny in the Fourth Degree. On March 26, 2009, Petitioner pleaded guilty to two counts of violating New York Penal Law Section 190.80, Identity Theft in the First Degree, and was sentenced on May 28, 2009 to consecutive terms of 4 to 8 years.

On June 9, 2009, Petitioner filed a motion with the Criminal Court in Richmond County seeking the return of the subject property, which was opposed by the Richmond County District Attorney’s Office. By decision and order dated July 13, 2009, The Supreme Court, Richmond County denied Petitioner’ motion, writing that the motion lacks any basis in statutory or common law in both its form and chosen forum, and that Petitioner failed to provide an affidavit with sworn allegations of fact, hereinafter the Criminal Court decision.

On August 4, 2009, an inquiry was made on behalf of Petitioner with the New York City Police Department’s Property Clerk for the subject property, and the Property Clerk issued an acknowledgment of the demand. Upon receiving an inquiry, the Property Clerk contacted Detective YL to determine the status of the subject property. In memorandum dated August 11, 2009, Detective YL changed the classification of the subject property from Investigative to Arrest Evidence.

Published on: August 24, 2014

Prostitution is a class B misdemeanor

by Stephen Bilkis

Policy considerations, however, may militate against entertaining an action for declaratory judgment that is instituted to challenge a criminal court’s ruling. On this basis, both declaratory relief and prohibition have been limited as a means for attacking penal statutes or court rulings. On reviewing the reasons underlying those decisions, it is concluded that the action here is proper. Declaratory relief, on the other hand, generally seeks a determination of rights before a “wrong” occurs, rather than collateral review of a court’s ruling. In that context, it has been used to test penal statutes. Two tacks have been taken in seeking declaratory relief with regard to criminal laws. First, some have sought a determination whether particular conduct violates some penal law. The other has been to test the constitutional validity of a statute. This court generally has held that the latter is proper; the former is more circumscribed.

With this in mind, it can be stated that a declaratory judgment attacking a criminal court’s interlocutory ruling may be granted when the controversy is over the validity of a statute, the determination of which does not require resolving any factual disputes, and there is no immediate attempt to prevent the criminal court from proceeding on the course which it has charted by its ruling. Furthermore, the criminal court’s ruling must have an obvious effect extending far beyond the matter pending before it so that it is likely that the issue will arise again with the same result in other cases. Put another way, the situation must be one where it can be assumed that the question will recur in other prosecutions and the criminal court will decide it in the same way. Inasmuch as a defendant always has available a right to appeal, only an application for declaratory relief by the People should be entertained. The recurring nature of the issue, therefore, should pose a risk of significantly obstructing the task of administering criminal justice by imposing an undue burden on prosecutors and the courts. Although this court declines today to expressly limit when such an action may be brought, it is noted that this concern over obstructing the speedy resolution of cases suggests that it is most appropriate when the challenge is to a ruling on how a trial is to be conducted. This “procedural” type of question is also the sort that is likely to recur and to be decided in the same manner regardless of the facts underlying the criminal charges. On the other hand, mere evidentiary rulings would not be proper subjects. Finally, the appropriate parties do not include the individual defendant in the case where the challenged ruling was made; as to him or her, there is another pending proceeding and the controversy has been decided. As a corollary, the action for declaratory judgment cannot seek any injunction against the individual defendant or the criminal court.

Applying these factors to the instant proceeding, it is apparent that declaratory relief is proper. Judge ruled that CPL 340.40 (subd. 2) was unconstitutional as applied to prostitution defendants in New York City. The nature of the ruling clearly makes it one that will be repeated unchanged in future prosecutions. Its potential impact on the criminal justice system is manifest from Judge Erlbaum’s own decision. In 1979, a total of only 15 out of 14,247 prostitution cases went to trial in the Manhattan Criminal Court. It can be expected that, if jury trials were available, far more prostitution defendants would demand trials, which would overwhelm the courts and prosecutors by consuming large amounts of time for selecting juries and would cause unmanageable delays.

Published on: August 23, 2014

The Illinois Appellate Court

by Stephen Bilkis

A Queens Shoplifting Lawyer said that, this case before the court involves a supermarket owner (the complainant) who, while manning the checkout register near the exit, saw the defendant go past him with an armful of meat, subsequently estimated at $30 worth. When he called out, defendant quickened his pace and left the store. The owner took off after him, gave chase around the corner, and saw defendant enter a car. The motor was running. As the complainant paused to jot down the license plate number, the meat was thrown from the car. While this was happening a police patrol car came upon the scene. In a matter of seconds defendant and co-defendant (who was at the wheel of the car) were under arrest, charged with the Class A misdemeanor of petit larceny.

A Queens Petit Larceny Lawyer said that, at the preliminary hearing the complainant testified that the meat, once repossessed, was cleaned, re-wrapped and sold in the regular course of the supermarket’s business. The meat obviously was not produced at the hearing, which took place three weeks after the incident. Such tags as it may have had, identifying its ownership or other information, were lost sight of and were never produced in court.

A Queens Criminal Lawyer said that, at the close of the preliminary hearing the defendants now move to dismiss the complaint on the ground that the People have failed to meet the obligation to establish reasonable cause for the arrest, as required by Section 170.75, subdivision 3(a) of the Criminal Procedure Law. Although they admit that it would have been inappropriate, perhaps, to bring such perishable property into court, they contend that the prosecution had an obligation to bring in and introduce memorandum tags of ownership as a prerequisite to oral testimony of ownership. In the alternative, they claim that the People should have been required, before oral testimony of ownership could be admitted, to give a satisfactory explanation for their failure to produce such tags. To this end they invoke the functional definition of the best evidence rule as requiring ‘that whenever a party seeks to prove the contents of a writing, he must produce the original of the writing or satisfactorily account for its absence.’

Published on: August 22, 2014

CPL 340.40 (subd. 2)

by Stephen Bilkis

Respondent is a Judge of the Criminal Court of the City of New York, New York County. In 1981, two women accused of prostitution, which carries a three-month maximum sentence, appeared before the respondent Judge and moved for trial by jury. The defendants argued that CPL 340.40 (subd. 2), directing that crimes punishable by not more than six months’ incarceration shall be heard before a Judge, was unconstitutional because it deprived them of their Sixth Amendment right to jury trial and denied them equal protection of the law. The court granted their motion, reasoning that, notwithstanding its relatively minor sentence, prostitution is a “serious” crime with a concomitant right to trial by jury. The defendants’ equal protection argument was not reached.

A New York Criminal Lawyer said that, petitioner, the District Attorney of New York County, commenced this proceeding to prevent respondent’s order from taking effect. Initially, the matter was instituted under CPLR article 78 to obtain a writ of prohibition. Petitioner moved to convert the proceeding into an action for declaratory judgment after this court stated that prohibition is not available to attack a criminal court’s ruling that a statute denying a trial by jury is unconstitutional. Special Term granted the motion to convert and declared that CPL 340.40 (subd. 2) is constitutional. The Appellate Division, First Department, affirmed, but without opinion.

The issues in this case are: first is the procedural propriety of an action seeking declaratory relief that, in effect, collaterally attacks a criminal court’s ruling. The other matter, assuming that the action is proper, is whether CPL 340.40 (subd. 2) violates the Sixth Amendment.

Published on: August 22, 2014

Officer Graham approached defendant

by Stephen Bilkis

Upon defendant’s motion, the Court conducted a combined hearing. The People called three witnesses, a Detective assigned to the Police Commissioner’s office, and 2 Police Officers. The defendant’s father testified for the defendant.

A Queens County Criminal attorney said that an Officer overheard these radio reports. While in the vicinity of 156th Street and 113th Avenue, approximately three blocks from the shooting and six minutes after the original broadcast, the officer observed defendant, a male Black, 6’1″‘ tall and 185 lbs., leaning against an automobile, parked on the left side of the street. Defendant was wearing a dark blue hooded sweatshirt and blue jeans, and was the only male in the area. He had his hands in the pouch in the front of the sweatshirt, which sagged a little.

The Officer asked defendant to remove his hands from the pouch, which he did, at which point the officer noticed that the pouch sagged or drooped more and he observed a bulge. He reached and touched the area with his left hand and felt the cylinder of a gun and reached inside with his right hand, removed the gun and swung defendant around, placing him up against a car. A subsequent inspection of the weapon revealed four live rounds and one spent shell.

Published on: August 21, 2014

CPL 60.42

by Stephen Bilkis

A New York Sex Crimes Lawyer said that, the defendants were indicted for the crimes of rape in the first degree, sodomy in the first degree, sexual abuse in the first degree and assault in the second degree. Although the alleged crimes occurred on April 4, 1975, the trial did not commence until October 21, 1975. The trial court determined that the provisions of CPL 60.42 were applicable to the trial of this case.

A New York Criminal Lawyer said that, pursuant to CPL 60.42, the defendants made an offer of proof concerning the complaint’s prior sexual conduct. After a hearing and a review of the various exhibits submitted by defendants, the trial court ruled that subdivisions 1 through 4 were not applicable and that the evidence offered was not “relevant and admissible in the interests of justice” under subdivision 5. Evidence of the complainant’s prior sexual conduct was therefore barred at the trial. Defendants contend that application of CPL 60.42 violated section 10 of article I of the United States Constitution, which prohibits the Legislature from passing an ex post facto law.

The issue in this case is whether the trial court erred in determining that the provisions of CPL 60.42 were applicable to the trial of this case.

Published on: August 20, 2014

Section 395, Code Cr.Proc

by Stephen Bilkis

In this Criminal case, the indictment charges the defendant with the crime of ‘Carrying a Dangerous Weapon’ in that he ‘had and carried concealed upon his person, a pistol loaded with ammunition at the time, without a valid, written license therefor.’

A Queens County Criminal attorney said that the only testimony before the Grand Jury is that of two police officers, the second one being a fingerprint expert whose testimony was elicited merely for the purpose of making the instant charge a felony, and who otherwise gave no substantive testimony.

The other witness, testified that in the course of a police investigation he took the defendant into custody at the Detective Squad in Queens County; that he questioned him in regard to a shooting that occurred at about 5:30 p. m. on that day; that the defendant told him that he was engaged in the shooting, that he had used a pistol, and that he had dropped that pistol in a specified catch basin.