New York Criminal Lawyer Blog

Published on: August 1, 2014

This court has long expressed its intolerance of general search warrants

by Stephen Bilkis

A Suffolk Marijuana Possession Lawyer said that, the People appeal from an order of the County Court, Suffolk County, which, after a hearing, granted the defendant’s motion to suppress certain physical evidence seized upon the execution of a search warrant, including eight bags of plant material. The order should be modified, by deleting so much thereof as suppressed the eight bags of plant material and substituting therefor a provision denying the motion as to the said evidence. Armed with an affidavit signed by a named informant who had been arrested on burglary charges, the police applied to a District Court Judge for a warrant to search the defendant’s home. The informant alleged in his affidavit that he had seen 12 bags of Marijuana in the defendant’s home the day before and that the defendant was known to the informant to be a dealer in marijuana. The affidavit described the bags, their location, the premises and the occupants of the premises in great detail.

A Suffolk Criminal Possession of Marijuana Lawyer said that, based primarily upon the informant’s signed affidavit, the District Court issued a warrant authorizing the search for, and the seizure of, “twelve large plastic bags containing marijuana and any other contraband which is unlawfully possessed”.

The issue in this case is whether the court erred in granting the defendant’s motion to suppress certain physical evidence seized upon the execution of a search warrant, including eight bags of plant material.

Published on: August 1, 2014

Maryland Court of Appeals

by Stephen Bilkis

The defendant was indicted for Attempted Murder in the First Degree and other crimes. The defendant filed an omnibus motion requesting, inter alia, dismissal of the charge of Attempted Murder in the First Degree.

A Queens County Criminal lawyer said that the defendant was granted leave to reargue. Defendant claims on reargument that his conduct does not warrant a charge of Attempted Murder because, according to the defendant’s counsel, he “merely” pointed a gun at the officer and did not attempt to fire it.

To the contrary, the defendant’s assaultive behavior and his statement of intent, as discussed below, as well as the totality of the circumstances, supports a finding that there is a reasonable suspicion that the crime charged has been committed, and that the defendant committed said crime. The court therefore reaffirms its previous decision, and upholds the indictment of Attempted Murder in the First Degree.

Published on: July 31, 2014

People v. Durham

by Stephen Bilkis

People v. Durham

Court Discusses Whether the Trial Judge Improperly Allowed Unauthorised Information Prohibited by the Sandoval Hearing

The defendant was convicted of driving while intoxication, DWI, and appealed on the ground that he did not have a fair trial. The defendant’s contention was based on the ruling of the Sandoval hearing versus what took during trial. The hearing held that if the defendant were to testify, he could be testified about his previous conviction of criminal possession of stolen property in the third degree in 1979, criminal possession of stolen property in the third degree in 1984, and operating a motor vehicle while intoxicated as a felony in 1984. The court allowed the prosecution to make inquiries into fact that there was a conviction of a class E felony in 1984 for operating a motor vehicle while intoxicated, but there could be no inquiry into the underlying facts of that conviction. The prosecution was not permitted to cross-examine the defendant on previous uncharged crimes. When the defendant testified, he denied intoxication and stated that he had experienced a dizzy spell and pull over onto the roadside. The defendant further stated he was yanked from the vehicle and lost consciousness while the police office stuck his head to the roof of the vehicle. The prosecution asserted that the defendant was driving with a suspended license and he did not produce any indicia of ownership of the car when demanded by the arresting officer after the objection by the defendant’s Queens County Criminal Attorney. The court allowed the prosecution to question the defendant about the indicia of ownership of the car. The evidence of the uncharged crimes was not directly relevant to the question of whether the defendant committed the crime charged, and went only to credibility.

Published on: July 30, 2014

Code of Judicial Conduct

by Stephen Bilkis

In an unprecedented action in the County of Suffolk, the prosecutor, on behalf of the People of the State of New York, requests an order disqualifying or recusing this court from presiding as the assigned judge of two separate indictments charging the defendant with the commission of two counts of Burglary in the First Degree, Assault in the Second Degree and the marijuana Possession and Assault in the Second Degree and Sexual Abuse in the First Degree.

It is beyond dispute that a judge must be free from all prejudice or bias, actual or implied, and an impartial arbiter of all causes over which he presides. A judge should disqualify himself from a case “in which his impartiality might reasonably be questioned where … he has a personal bias or prejudice concerning a party.”

A Suffolk County Criminal attorney said that in affidavits replete with out-of-context quotations, inaccurate quotations, and arguments fueled in large measure by newspaper accounts and incomplete transcripts, they raise the serious allegation “that a pattern of conduct of this Court in these cases, as well as in other recent matters, has established a bias or animosity such that this Court’s impartiality might reasonably be questioned.”

Published on: July 30, 2014

Family Court Act § 311.4(3)

by Stephen Bilkis

Respondent’s background was obtained by means of questions put to TS who has supervised respondent’s foster care with New York Foundling since 2007. Criminal Respondent was referred to the Girls Education & Mentoring Services, a social services program offering counseling to young women who have been sexually exploited sometime in 2009. On October or November of 2009, respondent disappeared from the GEMS facility and she subsequently fabricated a kidnapping, stating that kids kidnapped her from GEMS. According to TS, respondent later recanted, stating it was made up and she was not kid-napped. Rather, she went off and spent some time with a young man. According to TS, respondent had been referred to the GEMS program by New York Foundling because BP has a history of prostitution. TS recalled that in 2007 respondent’s foster care case had come under her supervision and that respondent, who was then just 12 years old, was already introduced to the lifestyle and had been working with criminal adult pimps.

In October, 2009, respondent gave birth to her own daughter and she and the infant were initially placed in a “mother/daughter” foster home in Brooklyn. Since then, the infant has been removed from respondent’s custody and placed into a different foster home. Child protective proceedings have been commenced on behalf of the infant and against the respondent by the Administration for Children’s Services.

In arguing for the substitution of a PINS petition, respondent’s Law Guardian contended that respondent is a victim of sexual exploitation and is entitled to the relief requested. The Law Guardian observed that respondent has no prior juvenile delinquency adjudications for offenses based upon acts defined by article 230 of the Penal Law nor does she have any PINS history in the Family Court. In addition, the respondent is herself a child placed in foster care as the result of child protective proceedings and termination of parental rights proceedings which had been previously brought against her biological parents.

Published on: July 29, 2014

DPCA developed the form to remedy perceived shortcomings in the statute

by Stephen Bilkis

This matter is before the Court for sentencing under Leandra’s Law New York’s newest anti-DWI measure wherein the defendant pled guilty to DWI driving while intoxicated pursuant to Vehicle and Traffic Law § 1192 (3).

One month after the DWI death of 11-year-old Leandra Rosado in New York City, the State enacted Leandra’s Law on 18 November 2009 requiring all first-time, misdemeanor DWAI https://dwi.1800nynylaw.com/new-york-dwai-lawyer.htmloffenders install ignition interlock devices in every automobile they own or operate for at least 6 months. It further requires, barring indigency, that offenders pay for installation and maintenance of the interlocks. However, like so many products rushed to market prematurely, Leandra’s Law exhibits numerous defects imperiling its constitutionality.

The court faces the issues to be considered from the State’s failure to establish determinate ignition interlocking costs. The first is whether the indeterminate nature of the cost of installing and maintaining ignition interlocks invalidates the requirement defendants pay for the devices, given the cost is statutorily classified as a fine and therefore constitutes a criminal punishment. That issue informs a related, New York constitutional concern whether the State violated New York constitutional law by failing properly to promulgate a final interlock cost list. Moreover, the court will examine whether the lack of a statutory metric for determining a defendant’s ability to pay for the ignition interlock violates equal protection because it may lead to arbitrary enforcement. Also at issue on equal protection grounds is whether requiring defendants to interlock every auto they own or operate is justifiable.

Published on: July 29, 2014

There had been a series of postponements

by Stephen Bilkis

A man filed an appeal from a judgment convicting him of burglary in the third degree, criminal possession of stolen property in the third degree and petit larceny, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial of that branch of the man’s motion which was to suppress physical evidence.

The appellate division stated that the hearing court’s denial of the man’s motion to suppress the items seized from his person should not be reversed. It was further stated that the decision was supported by the record, which established that the stop and inspection of the man at the scene of the crime was founded upon a reasonable suspicion that he had committed the crime and that he was armed and could be dangerous.

Sources revealed that to sustain a conviction based on circumstantial evidence, the facts from which the inference of the offender’s guilt is drawn must be established with certainty, be inconsistent with his innocence, and exclude to a moral certainty every hypothesis other than guilt.

Published on: July 29, 2014

Our constitution grants a fair trial, not a flawless past

by Stephen Bilkis

A Queens Criminal Lawyer said that, defendant seeks an order restraining the District Attorney from cross-examining him regarding specific prior convictions. A hearing was held on September 12, 1973 and the Court determined the facts to be as follows: The defendant herein was indicted by a Queens County Grand Jury and charged with two counts of robbery in the first degree, assault in the second degree and criminal possession of a dangerous drug in the sixth degree. His counsel has placed before the Court the fact that the defendant has a prior criminal history, alleging: 1. That defendant in 1967 was granted youthful offender treatment in connection with a charge of possessing a prescription unlawfully; 2. A year later, in April 1968, defendant was arrested for robbery in the first degree and pleaded guilty to petit larceny in November; 3. On February 14, 1972 defendant was arrested on a charge of possession of a weapon and loitering and was sentenced to a conditional discharge after pleading guilty to loitering.

A Queens Petit Larceny Lawyer said that, defendant now moves to ‘restrain the District Attorney and preclude the people from introducing any evidence’ with regard to the above convictions or the underlying acts which gave rise to them. It is his contention that, while the People would allegedly offer such convictions solely to impeach his credibility as a witness, the practical result would be to establish his guilt in relation to the present crimes. In effect, such evidence would influence the jury to believe that the man now on trial is either a habitual criminal or has a specific propensity for the crime of robbery with which he is now being charged. The defendant concludes that, because of this, the probative value of impeachment of his credibility is clearly outweighed by the prejudicial value before a jury. This, in defendant’s mind, constitutes a denial of the constitutional right to a fair trial.

A Queens Grand Larceny Lawyer said that, the People, first, dispute the facts of defendant’s final conviction, pointing out that their records show that defendant on February 14, 1972 was indicted for possession of a weapon, pleaded guilty to same and received a sentence of probation for three years. Next, they attacked the logic of his contentions, maintaining that the defendant has offered no legal basis to support them; nor cited any pertinent Supreme Court decision to establish the alleged violation of constitutional rights. Further, it is submitted that the defendant has presented no facts of any kind, other than the bare recital of his prior criminal history, which might indicate substantial prejudice or show unique harm by the admission of such crimes before a jury.

Published on: July 28, 2014

Family Court Act § 311.4(3)

by Stephen Bilkis

In this proceeding, the criminal respondent is charged with committing acts which, were she an adult, would constitute the crimes of Prostitution, Resisting Arrest, Obstructing Governmental Administration in the Second Degree, and False Personation. Respondent has moved pursuant to Family Court Act § 311.4(3) for an order directing the substitution of a petition alleging that she is a Person in Need of Supervision for the petition alleging that she is a juvenile delinquent.

The petition alleges that on 18 May 2010 in Queens County, the respondent, BP born 17 July 1994, offered to engage in sexual conduct with an undercover police officer in exchange for payment in violation of Penal Law § 230.00, that respondent resisted arrest by fleeing from police officers who intended to take her into custody for committing the sex crimes of Prostitution and that she obstructed governmental administration by physically resisting arrest and by refusing to follow the directives of police officers after she had been taken into custody.

The undercover police officer states that at approximately 6:50 A.M. in the vicinity of 111th Avenue and Sutphin Boulevard, Jamaica, Queens County, a known prostitution location, the respondent asked him what he wants and with a hand gesture indicating oral sex respondent asked if he wanted a blow job. The police officer asked the criminal respondent how much for the blowjob and she replied, in sum and substance, “fifty dollars”. Thereafter, respondent got inside the vehicle.

Published on: July 28, 2014

Typically, a bottle of Aguardiente Antioqueno has an alcohol content of 29%

by Stephen Bilkis

This wrongful death action arises out of an automobile accident due to drunk driving that occurred sometime between the hours of 9 and 10 p.m. when a man went to a bar to celebrate the end of tax day. The celebration was for the employees and spouses of the man’s accounting firm. Ten to fourteen peopled attended the celebration. The owner of the bar and a waitress, who served drinks to the party, were also present. The record reveals that the celebrants ate appetizers and drank alcohol throughout the night. Prior to arriving at the bar, the man drank a beer at his office. After arriving at the party, the man continued to drink alcohol. Specifically, the waitress indicates that the man was served approximately six vodka and cocktails. Also, a complimentary bottle of Aguardiente Antioqueno, was served to the party. Typically, a bottle of Aguardiente Antioqueno has an alcohol content of 29%.

At trial, two testified that the man took at least one shot of the Aguardiente on the night in question. Another testified that around 1:00 a.m., the criminal man appeared to be intoxicated. The wife of the man also attended the celebration to be her husband’s designated driver. However, she took shots of Aguardiente, drank vodka and cocktails. The woman subsequently appeared intoxicated. Based upon the time of the accident, it appears that the two left around 1:00 a.m.

The driver of the dump truck testified that he was transporting asphalt. Prior to starting the task, he performed a 20 to 25 minute inspection of the truck. Specifically, he examined the interior and exterior of the vehicle. He determined that the lights on the vehicle were in satisfactory condition, the tires did not have physical damage and had a satisfactory tread depth and pressure, the wheels and rims of the vehicle were in satisfactory condition, the steering was in satisfactory condition and there was no overdue preventive maintenance required on the vehicle. He completed three trips prior to the accident.