New York Criminal Lawyer Blog

Published on: February 16, 2012

Defendant Charged with Multiple Sex Offenses

by Stephen Bilkis

On October 16, 1997, a male identified only as C.B. made a videotaped confession to a Bronx Assistant District Attorney following his arrest. During the confession, C.B. discussed numerous criminal offenses and described on at least 11 different occasions on which he had entered private residences unlawfully and in some cases, masturbated onto a sleeping female victim. He also claims to be an exhibitionist and states that he needs help because he has a problem or illness that made him repeatedly commit the sex crimes.

C.B.’s criminal defense attorney subsequently filed a motion with the Bronx County Supreme Court to exclude statements made in the confession that related to the charges he was arrested on. According to a New York Criminal Lawyer, the motion also included a request to exclude testimony from the victims and the minutes of the Grand Jury proceedings. Specifically, defense counsel argued that the victim should be precluded from testifying at trial since the statements offered would be irrelevant; that the videotaped confession should be excluded since it contains evidence of unrelated and uncharged crimes; that the videotape itself was prejudicial; and that C.B. was not competent to testify as to his own mental capacity.

An Article 10 hearing was scheduled on April 9, 2009, to determine whether the tape confession should be admitted. Defense counsel also argued that the tape’s admission would violate C.B.’s constitutional rights and that Grand Jury testimony should be precluded since it was never referenced in the charges or plea allocution and should not be disclosed without a court order.

Published on: February 16, 2012

Court Rules on DWAI Case

by Stephen Bilkis

The defendant in this case was charged for DWI with two counts. The prosecution asked the court during the end of the defendant’s trial to include a lesser offense, driving while ability impaired or DWAI. The court granted the request despite the objection of the defendant. The defendant received acquittal from the jury on both DWI counts. However, he was convicted of the lesser DWAI offense.

The prosecution supported their motion to charge for DWAI since the law states that a defendant who has already been convicted for previous driving offenses should be charged with DWAI. This is treated by the court as a misdemeanor on the part of the defendant.

During the trial, no evidence was presented regarding the past offenses of the defendant. The prosecution has presented documents that would prove his past drinking violations. In his objection, the defendant contends that his past offenses should be proven based on special information.

Published on: February 16, 2012

Court Rules on DWI matter

by Stephen Bilkis

A driver was involved in a one-car accident in Albany County. The car he was driving left the highway and struck a tree. As the result of investigation, officers of the defendant Town Police Department went to the hospital to issue the plaintiff driver his appearance tickets charging him of DWI (driving while intoxicated), operating an unregistered vehicle and driving at a speed not reasonable and prudent. A New York DWI Lawyer said that a blood sample was taken from the plaintiff to determine his blood alcohol content, which later proved to be negative. Consequently, the charges against the driver were dismissed. Thereafter, the driver commenced a legal action against the defendant Town, the police department and the Police Officer for false imprisonment and malicious prosecution. The defendants answered and moved for dismissal of the charges. In opposition to the motions, the driver conceded that his claim for false imprisonment did not lie, but contended that his malicious prosecution claim was viable because the defendants lacked probable cause to initiate the criminal proceeding which was terminated in his favor. The Supreme Court granted the defendants’ motions and an appeal proceeded.

A New York DWI Lawyer explained that elements of an action for malicious prosecution are initiation of a proceeding without probable cause. Records show that the defendants submitted their testimony and affidavits of the police officers who were dispatched to the accident scene. The testimony and affidavits claim that the driver was observed to be somewhat incoherent, and that they detected a faint odor of alcohol emanating from him. When they asked the driver whether he had been drinking, the driver responded that he did not drink much. The police officers further alleged that the driver’s automobile had failed to negotiate a curve at the accident site and that the road surface was dry and free of any defects where the vehicle had left the road. Based upon the facts, the police officers asserted that there existed probable cause to issue the appearance tickets in question.

In opposition to the motion, the driver asserted that he had consumed no alcoholic beverages on the day of the accident, a fact confirmed by the results of his blood alcohol analysis, and that the accident resulted when he leaned over to pick up a cigarette that he had dropped. As to his alleged conversation with the police concerning his alcohol consumption, the driver alleged that he had no recollection of events from the time of the collision until he regained consciousness in the hospital two months later. A Nassau County Criminal Lawyer said that it appears that there are questions of fact as to whether probable cause existed for the issuance of the appearance ticket for driving while intoxicated. Notably, the driver’s alleged admission that he had not drunk much on the day of the accident was a matter solely within the knowledge of the moving parties, given the driver’s lack of recollection of events following the accident, and should not form the basis for dismissal.

Published on: February 15, 2012

Court Rules on Drug Crime Charges

by Stephen Bilkis

On April 20, 2007, an undercover police officer in a bar in Westhampton Beach in Suffolk County observed a suspect hand a knotted clear plastic bag containing a white powdery substance to another person and in return he was given cash money. They then separated and left the bar. Since the officer had witnessed the sale of the suspected narcotic, he had other officers stop the truck of the buyer and they recovered the drugs which proved under testing to be cocaine. The buyer was arrested for cocaine possession, according to a New York Drug Crime Lawyer.

The buyer then agreed to testify against the seller. Around two hours later, the seller was arrested. At the time of his arrest, he was not in possession of cocaine or any other drugs. The seller was arrested and charged with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. In return for his testimony against the seller, the buyer’s criminal charges were dismissed.

Prior to court, the prosecutor asked the judge if he could get permission to ask the buyer on the stand in court if he had purchased drugs from that seller in the past. He argued that since he had been a regular customer of the seller that it would clear up any questions as to the “absence of mistake.” In other words, it would ensure that the defense could not say that the buyer was mistaken about the identity of the person who had sold him the drugs, explained a Queens Drug Possession Lawyer. If the buyer knew the seller, there is no “absence of mistake.” The defense counsel opposed the motion. He claimed that the seller was not going to claim that the buyer had made a mistake about naming him, but that the buyer was simply lying and that he had never sold the man drugs in the first place.

Published on: February 15, 2012

Defendant Claims State Drug Statute Violates the Constitution

by Stephen Bilkis

On November 7, 1974, the Supreme Court of Monroe County, New York was called upon to hear the appeal of a drug possession conviction. According to a Brooklyn Criminal Lawyer, New York man was convicted after a jury trial of “Criminal Sale of a Controlled Substance in the First Degree based on a $5000.00 sale of cocaine, Criminal Possession of a Controlled Substance in the Fifth Degree, and Criminally Using Drug Paraphernalia in the Second Degree.” The appeal of the offender’s cocaine possession and sale case was based on the contention by the offender that the state’s statute was written in violation of the United States Constitution.

According to a New York Criminal Lawyer, the offender claims that the punishment imposed on Class A drug felons is cruel and unusual in violation of the Eighth and Fourteenth Amendments to the United States Constitution. The defendant argued that the sentences for drug offenses in New York are disproportionate to the offenses themselves. He sites in his behalf that other jurisdictions have lowered their mandated sentences when they were determined to be disproportionate. He contends that New York’s failure to do so makes them in violation of the United States Constitution.

Secondly, the defendant claims that the legislation is an arbitrary classification which denies equal protection of the laws because New York’s Class A drug offenses are punished more severely than Class A drug offenses in other jurisdictions.

Published on: February 15, 2012

Court Rules on Sex Crimes Case

by Stephen Bilkis

In September 2000, Darrin Higgens was accused of sexually abusing his 16-year-old daughter and having sex with one of her 15-year-old friends. Police arrested Mr. Higgens and after reading him his Miranda rights, he signed a written statement attesting to the fact that he may have had sex with his daughter while drunk. A New York Sex Crimes Lawyer reported that he was subsequently charged with 120 separate crimes, including multiple first degree sodomy charges, first degree rape charges and endangering the welfare of a child.

At the conclusion of Mr. Higgens’ trial, 88 of the 120 counts were submitted to the jury. He was convicted of two counts of third degree rape, incest, seven counts of endangering the welfare of a child and two counts of third degree sodomy. His criminal defense attorney filed a motion to set aside the verdict, which was denied. Mr. Higgens was sentenced to an aggregate term of 5 1/3 to 16 years. He subsequently appealed his conviction to the New York State Supreme Court Appellate Division.

Mr. Higgens’ defense attorney argued that he was denied the right to confront his accuser and that counseling records indicated that the victim was disruptive and troubled. The defense also claimed that at the time the victim testified, she was taking medication which would lead her to appear more credible. The trial court refused to admit these records into evidence, arguing that the victim’s mental status was not at issue. The appellate court agreed with this decision.

Published on: February 15, 2012

Court Rules on Question regarding Statutory Sentencing Guidelines

by Stephen Bilkis

David Felix was charged with robbery in the second degree as an armed and violent Class C felony, according to a New York Criminal Lawyer. He pled guilty to a Class D violent felony offense in exchange for a prison sentence of one to three years. At that time, the court agreed to consider an application for a less sentence based on mitigating circumstances. The court later found that there was insufficient mitigating evidence to support a shorter term than he had already received. Mr. Felix then challenged the court’s decision, alleging a violation of his due process rights. The court rejected his claim. At the sentencing hearing, Mr. Felix’s criminal defense attorney filed another application for a shorter sentence, which was also denied.

The case was then referred to the Supreme Court Appellate Division to address Mr. Felix’s constitutional claim. After reviewing New York Penal Law, the court determined that the prison term he received was appropriate and that the lower acted within the boundaries of its discretion in handing down the sentence. Accordingly, his plea arrangement and sentence were affirmed.

In a concurring opinion, Justice Lupiano noted that the statute in question, Penal Law Section 70.02., was in fact constitutional. Furthermore, the judge noted that in pleading guilty to the second degree attempted robbery charge, Mr. Felix was fully aware of the sentencing restrictions imposed by law.

Published on: February 15, 2012

Court Rules on Murder Case

by Stephen Bilkis

A husband was convicted after a jury trial, of attempted murder, assault in the first degree and assault in the second degree. His terms were to run concurrently.

The husband repeatedly stabbed his wife, causing her serious and permanent injuries, and forced her seven year old step-daughter to fall out of a window. A New York DWI Lawyer explained that the principal question is whether the husband was entitled to the requested charge of reckless criminal assault, as a lesser included offense of intentional assault. The husband contends that the court should have granted his request, arguing that it was inherently inconsistent for the court to charge intoxication but not the lesser included offense of reckless assault arising out of that intoxication.

To establish entitlement to a lesser included offense charge, the defendant must show that the additional offense he seeks to have charged is a lesser included offense, an offense of a lesser degree. He must also show that it is theoretically impossible to commit the greater crime without also committing the lesser one and there is a reasonable view of the evidence that would support a finding that he committed the lesser offense but not the greater. A New York Criminal Lawyer contends that with the circumstances presented, it was impossible to commit intentional assault without also committing reckless assault. While the evidence of intoxication may be considered as negating the element of intent, there was insufficient evidence of intoxication for a reasonable person to entertain a doubt as to the husband’s. Thus, as the court argued in opposing the husband’s request for a charge on intoxication, no reasonable view of the evidence show that he was intoxicated. The issue of his intoxication should not have been submitted to the jury, and the court’s failure to charge reckless assault under the theory he was intoxicated was not an error and does not warrant reversal.

Published on: February 14, 2012

Courts Rule on Mandatory Sentencing in Drug Case

by Stephen Bilkis

A 25-year old mother was indicted and convicted of a drug crime after trial of the sale of cocaine, which is considered a class A-I felony to an undercover police officer. According to sources, in a location known for rampant cocaine possession, the mother sold the undercover officer 214 vials of cocaine for $2,000 and promised to “take care of” him “the next time” he came. At the time of the sale she was 17 years old.

According to a New York Criminal Lawyer, under criminal laws, conviction of a class A-I felony carries a mandatory indeterminate prison sentence, the minimum of which is not less than 15 years and not more than 25 years, the maximum of which is life imprisonment. The trial court, however, determined that in this drug case, imposing even the minimum mandatory sentence of 15 years to life would constitute cruel and unusual punishment. Accordingly, the trial court imposed an indeterminate sentence of eight years to life imprisonment. A divided appellate court affirmed. The judges who the dissented voted to reverse the sentence and remand the case to Supreme Court for resentencing in compliance with the Penal Law’s mandatory sentencing provisions for an A-I felony conviction. The State appealed.

On further appeal, the court pointed out that courts have upheld the facial and validity of the mandatory maximum life imprisonment sentence and various mandatory minimum prison sentences as against challenges under the cruel and unusual punishment prohibitions of the State and Federal Constitutions. The court, in many cases, adopted the principle that a sentence may constitute cruel and unusual punishment by being ” ‘cruelly’ excessive, that is, grossly disproportionate to the crime for which it is exacted.”

Published on: February 14, 2012

Court Deals with Witness Testimony is Sex Crimes Case

by Stephen Bilkis

Brian Fielding was charged with and convicted of multiple counts of sodomy, sexual abuse and endangering the welfare of a child. His criminal defense attorney challenged his conviction with the New York Court of Appeals, on the grounds that the testimony of his victims was insufficient to prove his guilt in connection with the sex crimes.

Specifically, Mr. Fielding argued that the testimony did not meet the corroboration requirement as set forth under New York law. Section 60.22 of the CPL and Section 130.16 of the Penal Law preclude a conviction for sex crimes based solely on the uncorroborated testimony of an accomplice or victim.

The court of appeals noted that the corroboration requirement for consensual sodomy is the same as that needed for accomplice testimony. The court held that since Mr. Fielding’s victims were minor children no older than 14, the sex offenses could not be considered consensual within the scope of the statutory requirements.