New York Criminal Lawyer Blog

Published on: August 10, 2014

She did not know who owned the gun

by Stephen Bilkis

At approximately 12:55 a.m., a police officer, in plain clothes and assigned to the street crime unit, was driving southbound in an unmarked police car with his partner when he observed an automobile that double parked the street on the northbound side. He also observed that there were no other similarly double parked cars. The officer saw a man, who was standing on the passenger side of the car by the open rear door, remove something from his waistband, lean over and place it in the rear passenger compartment. The officer could not tell what the object was but, based on his extensive experience as a police officer and member of the street crime unit and the man’s movements, he believed it to be a gun. The officer then made a U-turn and pulled up behind the car, which had two occupants, both women, seated in the front. As the police vehicle came to a stop, the man closed the door and walked away.

The officer exited his car, stopped the criminal man near the rear of the car, identified himself as a police officer and, while the other officer detained the man, approached the car. On the floor of the rear compartment, he observed an empty shoe box and a .9mm semi-automatic handgun, the barrel of which was partially covered by the shoe box. The officer recovered the gun, which had six rounds of ammunition in the magazine and one in the chamber. At that point, the man told the officer that he would take the weight for the gun. After the officer explained to the man that if the gun was not his, he should not take the responsibility for it, but, the man admitted that he owned the gun.

At trial, the man called two witnesses, first, a neighbor and a friend of his family, who testified that the man was on the sidewalk talking to his brother when two men, whom she later learned were police officers, arrived. After speaking to the occupants of the double-parked car and removing them from the vehicle, one of the officers reached into the car and removed something. The two officers then arrested the man. The man’s second witness testified and stated that she was an ice cream vendor and a friend of the man, who had occasionally worked with him on her route. She stated that she was sitting in the driver’s seat of her automobile while waiting for the man, when she saw two plainclothes officers approach him as he stood on the sidewalk talking to his brother, and, apparently believing the man to be a robbery suspect and ask him for identification. She further stated that the officers then searched the front and back of her car and recovered a gun, which the criminal man denied owning. She did not know who owned the gun or how it found its way into her car. She testified that the man had not been in the car before the police approached.

Published on: August 9, 2014

Both crimes result in death

by Stephen Bilkis

The deceased and his male friend occasionally sold marijuana out of a grocery store they owned together in Queens. While the deceased was away on a trip, the defendant came into the store and told the male friend that he wanted to buy a quantity of marijuana. They agreed on a price of $4,000, and the defendant later sent a man to pick up the drugs. The male friend soon discovered that the bills the man had given him in exchange for the marijuana were counterfeit. He called the defendant and demanded that he either return the drugs or bring the money. The criminal defendant did neither and, when the deceased returned from his trip, the male friend told him what had happened.

On the evening of January 19, 1993, the deceased was in the store with another friend. An associate of the defendant telephoned but the deceased hung up on him after saying only, that he doesn’t want to hear what he is to say. Another call came and the caller told him to bring the stuff back. Another call came in, this one from the defendant himself. Again, the deceased said that he doesn’t want to hear it, just bring it back.

A few minutes later, another man arrived at the store, followed soon after by the defendant and two other men. After one of the men asked the deceased why he had hung up on him, the defendant suddenly produced a gun, pointed it at the deceased, and said that he heard him telling the people what he is going to do him. The deceased replied that it is not true, but the defendant fired one shot at him from a distance of approximately four to five feet, striking him in the neck. After being shot, the deceased made an attempt to get out of the store through the back door behind the counter. He was unsuccessful.

Published on: August 7, 2014

Court found that it was legally sufficient to establish the defendant’s guilt

by Stephen Bilkis

An Appeal was filed by the defendant from a judgment of the County Court, Suffolk County, convicting him of criminal possession of a controlled substance in the fourth degree and failure to stop at a stop sign, upon a jury verdict, and imposing sentence.

A Suffolk County Drug Crime attorney said that the defendant’s motion to dismiss the indictment on the ground that he was not afforded the opportunity to testify before the grand jury, and that he was deprived of the effective assistance of counsel in that respect, was properly denied.

Viewing the evidence in the light most favorable to the prosecution, the Court found that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, in fulfilling the Court’s responsibility to conduct an independent review of the weight of the evidence.

Published on: August 7, 2014

V.T.L. § 1192

by Stephen Bilkis

In a civil forfeiture action, the defendant appeals from a judgment of the Supreme Court, Nassau County, which, upon an order of the same court, searching the record and granting summary judgment in favor of the plaintiff, declared that the defendant had forfeited all right, title, and interest in a certain 1996 Mazda automobile.

A Nassau County Criminal attorney said that the defendant was arrested for misdemeanor driving while intoxicated (hereinafter DWI). Incident to the defendant’s arrest, her 1996 Mazda automobile was seized. The defendant pleaded guilty to the lesser charge of driving while ability impaired (hereinafter DWI) as proscribed by Vehicle and Traffic Law 1192(1), a traffic infraction. Thereafter, the plaintiff, County of Nassau, commenced this action for the forfeiture of the defendant’s car

It is well settled that automobiles operated by intoxicated drivers may be seized and sold pursuant to civil forfeiture laws. Pursuant to section 8-7.0(g) of the Nassau County Administrative Code, “instrumentalities of a crime” seized incident to arrest, are subject to civil forfeiture upon conviction of a misdemeanor, crime, or petty offense. Notwithstanding that Vehicle and Traffic Law 155 provides that traffic infractions are not crimes, Criminal Procedure Law 1.20(39) defines a petty offense to include traffic infractions. The defendant’s sole contention that, because a traffic infraction is not a crime pursuant to the Vehicle and Traffic Law, it cannot serve as a predicate for civil forfeiture, is a non sequitur.

Published on: August 5, 2014

The People had an opportunity to establish that fact

by Stephen Bilkis

In May 1964 a search warrant authorizing a search of the person and the Queens County residence of the defendant was issued, based upon a supporting affidavit sworn to by a Detective. Armed with the warrant, the Detective and two other detectives took the defendant into custody in Manhattan, near his place of business. They frisked him but did not then open the attache case that he was carrying.

A Queens County Gun Crime lawyer said that the detectives informed the criminal defendant that they had the warrant and that with or without him they were going to proceed to Queens County to execute it. He apparently chose to accompany them. Just before entering the house, the detectives opened the attache case and discovered a loaded gun and a large quantity of airline tickets. The search of the house resulted in the seizure of another loaded gun, a pair of brass knuckles and a blackjack.

After the search was concluded, the officers asked the criminal defendant about the items found in the attache case and in the house, and he admitted ownership of the gun, brass knuckles and blackjack. According to the record, defendant made no statement until the weapon had been found.

Published on: August 5, 2014

A police officer and his partner received a radio transmission

by Stephen Bilkis

A man spent the evening of Saturday and the early morning hours of the next day in a basement apartment, smoking large quantities of crack cocaine and drinking large quantities of alcohol. As the night progressed, he also kidnapped and robbed at least two individual. After one of the said victims became very agitated, the man allowed him to leave on the condition that he will be back with money. The victim returned with his armed stepson and a friend. The man shot and killed the stepson, firing five rounds at him.

The man was then convicted of felony murder in the second degree, kidnapping in the second degree, robbery in the first degree, criminal possession of a weapon in the second degree, and two counts of criminal possession of a weapon in the third degree. He then filed an appeal, principally arguing that the trial court should have given a justification charge to felony murder.

At trial, a witness testified that at approximately 9:30 P.M., he went to a basement apartment to pick up a woman, whom he had recently met. Immediately upon entering the apartment, an individual whom he had never seen before and whom he identified at trial as the man, placed a gun at his back, searched him, took his money, keys, wallet, and other personal items, and ordered him to sit down. Also, inside the apartment at that time, there were the woman and two men that the witness had never seen before. The man, the woman, and the other individual then drank and did drugs, all of which they purchased with the witness’ money. At no time did the man put away the gun. During that time, the witness heard the man claim that when the drugs ran out, the woman would be the only witness.

Published on: August 4, 2014

CPL § 200.70(2)(b)

by Stephen Bilkis

This is a criminal case where Defendant, a former Police Chief of Metro-North Commuter Railroad Company, has been indicted and charged with computer trespass in violation of Penal Law § 156.10(2), unauthorized use of a computer in violation of PL § 156.05), falsifying business records in the first degree in violation of PL § 175.10 and official misconduct in violation of PL § 195.00(1). A New York Criminal lawyer said that All charges arise from the alleged misuse of the New York State Police Information Network (NYSPIN), a computer system containing individual criminal histories. Defendant moves for an order seeking dismissal of the indictment on multiple grounds.

A public servant, to be guilty of official misconduct, must intend to obtain a benefit to himself. While PL § 10.00(17) defines a benefit as “including a gain or advantage to [another] person”, a fair reading of these words compels the conclusion that the benefit to another person must be at least indirectly of benefit to the accused, as, for example, a benefit to the accused’s family, to a friend or to the accused’s business., by using the words “and includes” rather than the word “or” limits “benefit” to a gain or advantage to the beneficiary.

There is nothing in the case law that contradicts this construction of PL § 195.00. In 1969, an upstate trial court recited the history of the statute and its predecessor provisions and held that the crime of official misconduct requires “[a] culpable motive which must be directly connected with the duty which the public servant violated and such motive must be of a venal nature”. It is a specific intent to obtain a benefit or to injure another person or deprive another person of a benefit”. A few courts have fleshed out the statutory definition of “benefit” in the context of bribery and bribe receiving under Penal Law Article 200.

Published on: August 3, 2014

Article 14 of the Vehicle and Traffic Law

by Stephen Bilkis

The defendant is charged with violating the Vehicle and Traffic Law, which in part states that any person operating a motor vehicle, who knowing that damage has been caused to personal property of another, due to the culpability of the person operating such motor vehicle leaves the place where the damage occurred without stopping, and exhibiting his license, is guilty of a misdemeanor. He moves for a dismissal of the charge following a preliminary hearing.

The credible evidence at the hearing held disclosed that the defendant had, under circumstances which he did not choose to explain, left the automobile which he had been driving and that the automobile, with its engine running had then collided with a parked motor vehicle. The arresting officer testified that he had heard the noise of a collision between the driverless automobile and the parked automobile.

There is no question that, at the time of the impact, the defendant was not in the automobile which he had been driving up until a few seconds before the collision.

Published on: August 2, 2014

Sandoval ruling

by Stephen Bilkis

An appeal was made by the defendant from a judgment of the Criminal County Court convicting him of grand larceny in the third degree (four counts) and scheme to defraud in the first degree, upon a jury verdict, and sentencing him to consecutive indeterminate terms of 1 to 3 years, 1 1/3 to 4 years, 1 2/3 to 5 years, and 2 to 6 years imprisonment, respectively, on each of his convictions of grand larceny in the third degree, and an indeterminate term of 2 to 6 years imprisonment on his conviction of scheme of bank fraud in the first degree, to run concurrently with the terms of imprisonment imposed on the convictions of grand larceny in the third degree.

The judgment is modified, on the law, by reducing the sentence imposed on the conviction of scheme to defraud in the first degree from an indeterminate term of 2 to 6 years imprisonment to an indeterminate term of 1 1/3 to 4 years imprisonment; the judgment is affirmed.

The defendant contends on appeal that the jury verdict was not supported by legally sufficient evidence. This contention is unpreserved for appellate review as the defendant’s motion for a trial order of dismissal was general in nature. In any event, viewing the evidence in the light most favorable to the prosecution, it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of factual review power, the verdict of guilt was not against the weight of the evidence.

Published on: August 2, 2014

On November 25, 1974 the defendant was sentenced to concurrent terms

by Stephen Bilkis

A Queens Criminal Lawyer said that, at about 3:30 A.M. on June 17, 1972, a girl of 15, was brutally knifed in the chest while sleeping in her ground floor bedroom. Before expiring, the girl told her parents (who had rushed to the room in response to her scream) that the assailant had stabbed her through an open window. Four days later, defendant was arrested for the crime and allegedly re-enacted the murder three times at the police precinct house and a fourth time at the scene of the crime itself. It was shortly discovered that defendant was being sought in connection with an existing indictment for attempted murder and some lesser crimes, that he had been adjudicated incompetent to stand trial on that indictment, and that following confinement to various mental institutions, he had been released in February of 1972 without the sanction of law enforcement authorities. Two weeks after the arrest for the slaying, the defendant’s appointed attorney agreed to the delivery of his client to the District Attorney’s office for further interrogation. During the course of two examinations at the prosecutor’s office, defendant is said to have re-enacted numerous murders and assaults. More than two years later, after trial by jury, the defendant was convicted on his earlier indictment. At a bench trial which followed, he was convicted of murder.

A Queens Criminal Lawyer said that, the first of the judgments appealed stems from events which occurred in Woodhaven in Queens County during the pre-dawn hours of September 5, 1971. The defendant originally was apprehended when two police officers, searching for a prowler, came upon him walking the street in dark clothes. When asked for identification, he allegedly responded by attempting to shoot one of the officers. The gun having misfired, the policemen wrestled the six-foot and four-inch defendant to the ground, disarmed him, and discovered that he possessed an automobile license, registration, and Social Security card in the name of a certain individual. Awakened by the police, the owner of the Social Security card related that before retiring she placed her purse containing the three documents on the dining room table next to a closed window. Not only was the purse missing, but the window was open and the table cloth had been pulled the length of the table toward it.

A Queens Petit Larceny Lawyer said that, the defendant was indicted for attempted murder, reckless endangerment in the first degree, burglary in the second degree, possession of weapons, etc., as a felony, criminal possession of stolen property in the third degree, and petit larceny, but after being jailed for 10 days and confined at the Kings County State Hospital for six to seven weeks, he was adjudicated incompetent to stand trial. Further successive confinements in two other mental institutions terminated with the defendant’s release by Mental Hygiene officials in February, 1972, without notice to the proper authorities.