New York Criminal Lawyer Blog

Published on: July 7, 2014

Family Court Act § 311.2(3)

by Stephen Bilkis

A Queens Drug Crime Lawyer said that, the appellant was arrested on July 13, 1989, in Jamaica, Queens. A petition filed the following day in Family Court, Queens County, alleged that he had committed acts that if engaged in by an adult would constitute criminal possession of a controlled substance in the third, fifth and seventh degrees. Attached to the petition was a supporting deposition in which Police Officer stated that he had observed appellant in possession of 33 vials of cocaine possession in crack form, and that “based upon his training and experience as a police officer assigned to a special narcotics unit with respect to the appearance, handling and packaging of narcotics and other controlled substances,” he believed the substance to be crack possession cocaine.

A Queens Criminal Lawyer said that, the same day that the petition was filed, appellant’s counsel moved that it be dismissed as legally insufficient since there was no laboratory report attached to the petition and Officer Henry’s account in the supporting deposition constituted hearsay. The court denied the request at that time. By omnibus motion and accompanying affirmation dated August 7, 1989, appellant’s counsel again requested that the petition be dismissed for legal insufficiency. The presentment agency appended to its answering affirmation a laboratory report dated July 18, 1989, which showed that the 33 vials seized from appellant contained 2,648 milligrams of crack cocaine possession. At a hearing before the Judge on August 15, 1989, appellant’s counsel again requested that the petition be dismissed for legal insufficiency, arguing that the presentment agency could not amend its petition by attaching the laboratory report because Family Court Act § 311.5 provides that a petition cannot be amended to cure legal insufficiency. The court reserved decision and finally denied appellant’s motion to dismiss the petition on September 13, 1989.

A hearing was held on September 20, 1989, to consider appellant’s motion to suppress. At this hearing, the Police Officer testified that on July 13, 1989, he was working as a backup on an undercover narcotics operation. At about 3:25 in the afternoon, he received a radio message from his partner, who reported that he had observed a young male engaged in a number of transactions which appeared to involve vials of crack cocaine. Approximately two minutes after receiving this message, the Officer spotted appellant, who fit the description radioed in by the other police officer. The Police Officer approached and detained the appellant. His partner drove by and confirmed that the appellant was the person he had seen earlier. The Police Officer then arrested appellant and recovered 33 vials of a substance that appeared to be crack possession of cocaine from the pocket of appellant’s jacket. Appellant testified in his own behalf and denied having sold crack cocaine prior to his arrest.

Published on: July 6, 2014

Jamaica Avenue in Queens County

by Stephen Bilkis

By petition filed pursuant to Family Court Act §310.1, respondent is alleged to have committed acts which, were she an adult, would constitute the crimes of Robbery in the Second Degree, Grand Larceny in the Fourth Degree, Petit larceny and Criminal Possession of Stolen Property in the Fifth Degree.

A Queens County Criminal attorney said that the Presentment Agency intends to offer a statement she alleges was involuntarily made or obtained in violation of Family Court Act §305.2 by law enforcement personnel, respondent has moved for an order suppressing the introduction of her statement at the prospective fact-finding hearing.

Upon a motion to suppress an out-of-court statement as involuntarily made, or as obtained in violation of Family Court Act §305.2, the Presentment Agency bears the burden of proving beyond a reasonable doubt that the statement was voluntarily made and lawfully obtained.

Published on: July 5, 2014

Supreme Court recognized the fact

by Stephen Bilkis

In this Criminal action, Defendant challenges his arrest and the seizure of physical evidence. At issue is the right of the police to stop a taxi for the purpose of handing out safety pamphlets.

In July 1994, Police Officer and Detective, both of the same Robbery Squad Precinct, were on patrol duty in Queens. They were dressed in plainclothes and rode in an unmarked car. This team was temporarily assigned to the Taxi Livery Robbery Task Force. Their assignment, for a period of 30 days, was to conduct a safety check on cabs, giving them advice on the services rendered by the Police Department to taxicabs and advising them of hazardous conditions within their industry. Their major duty consisted of stopping cabs and issuing a departmental pamphlet, entitled “Safety Tips for Cab Drivers.” In addition, they would advise taxi drivers that plainclothes officers were present in the area and if assistance was needed, they could request help.

At approximately 3:00 A.M., the officers were in the vicinity of 113th Street and Farmers Boulevard performing their duty of stopping cabs. At that time, the Officer observed a moving 1986 Ford vehicle bearing a taxicab license plate. Two people were in the rear. The officers, who had previously stopped three other cabs, made a U-turn and drove behind the taxi. For a short while they flashed their lights and sounded their siren for the purpose of pulling the taxi over.

Published on: July 4, 2014

New York Sex Offender Registration Act (SORA)

by Stephen Bilkis

Effective 21 January 1996, the New York Sex Offender Registration Act (SORA), section 3 of Chapter 192 of the Laws of 1995, Correction Law Art. 6-C, sections 168-et seq., modeled after New Jersey’s Megan’s Law, requires that convicted criminal sex offenders register with the appropriate law enforcement agencies. On the basis of an assessment of risk, information pertaining to this offender may be disseminated by the appropriate law enforcement agencies to the public. Under SORA, there must be a determination of: whether a defendant is indeed “a sex offender or a sexually violent predator”; and, “the level of notification”.” These determinations are to be strongly based on the recommendations made by the Board of Examiners of Sex Offenders (the Board). The Board has promulgated a Risk Assessment Instrument (RAI), which is to be utilized by the courts, “to assess the risk of a repeat offense by such sex offender and the threat posed to the public safety.”

Under the RAI, a numerical value to various factors is assigned, resulting in a “total risk factor score.” Based on this score, the offender is further categorized into one of three levels of notification. Where the risk of repeat offense is low, a level one designation (0 to +70) is assigned, and this requires that the appropriate law enforcement agencies are notified pursuant to SORA. Where the risk of repeat offense is moderate, a level two designation (+75 to +105) is assigned, and the appropriate law enforcement agencies “may disseminate relevant information which may include approximate address based on sex crimes offender’s zip code, a photograph of the offender, background information including the offender’s crime of conviction, modus of operation, type of victim targeted and the description of special conditions imposed on the offender to any entity with vulnerable populations” and “any entity receiving information on a sex offender may disclose or further disseminate such information at their discretion.” Where the risk of repeat offense is high, a level three designation (+110 to +300) is assigned, and the sex offender is deemed a “sexually violent predator.” In addition to all the requirements of a level two assignment, a level three sex offender’s exact address may be disseminated, and all of the pertinent information regarding the offender will be made available to the public through a subdirectory.

The RAI is not the sole criterion in determining: whether a defendant is a sex offender or a sexually violent predator”; and “the level of notification.” The sentencing court must also base its determinations on the victim’s statement and any materials submitted by the sex offender. Moreover, the sex offender must be allowed to appear and be heard. As clearly stated in the Risk Assessment Guidelines and Commentary of SORA, the risk factor calculated under the RAI is merely presumptive. If ‘special circumstances’ warrant a departure, the Court may depart from it. This ability to depart is based on the recognition that an objective instrument, no matter how well designed, will not fully capture the nuances of every case. Thus, a court is permitted to bring its sound judgment and expertise to bear on an otherwise coldly objective exercise which seeks to quantify that which may prove to be highly subjective. However, in People v. Ross, 1996, the court held that, “because the hearing was an ‘administrative function,’ it should ‘review the Board’s recommendations only for arbitrariness and capriciousness and otherwise uphold them.”

Published on: July 4, 2014

Assault in the 3rd Degree

by Stephen Bilkis

A New York Sex Crimes Lawyer said that, the Respondent is the subject of a sex offender civil management proceeding pursuant to Article 10 of the Mental Hygiene Law (“Article 10”). As noted in more detail infra, the Respondent admitted that he suffered from a Mental Abnormality under the statute and was given an agreed-upon disposition of Strict and Intensive Supervision and Treatment (“SIST”) on September 15, 2009. On November 15, 2010, the State brought a petition to revoke the Respondent’s SIST placement and instead have him confined in a Secure Treatment Facility. That petition was opposed by the Respondent.

A New York Criminal Lawyer said that, on December 9, 2008, this Court, in a detailed decision, found that there was probable cause to believe that the Respondent was a detained sex crime offender who suffered from a mental abnormality pursuant to Article 10. The facts relevant to the Respondent’s history prior to that date are fully recounted in that decision. The most relevant aspects of that history will be briefly outlined here. The “instant offense” which resulted in respondent’s being eligible for sex offender civil management occurred in 1993 and led to a conviction in 1994 for Attempted Rape in the First Degree, Sexual Abuse in the First Degree and Burglary in the First Degree. In that incident, the Respondent had been on a rooftop where he was looking at a woman in an apartment across the street, using cocaine and masturbating. He entered the victim’s apartment through a window, took a knife from the apartment, got on top of the previously sleeping victim and placed her hand on his penis. The Respondent at this point indicated that he could not become aroused. The victim threw him off of her bed. He then fled from the apartment and took a purse from her. This was the only incident in which it was known, prior to the Respondent’s placement on SIST, that he had engaged in a sex offense involving physical contact with a victim.

A New York Sex Crime Lawyer said that, respondent did, prior to being placed on SIST, have an extensive history of exhibitionism. Typically, this would involve him masturbating in public places while his penis was partially exposed to public view. It is clear from his history that he has engaged in such conduct on a large number of occasions over an extensive period of time. Prior to this Court’s probable cause determination, he had been diagnosed as suffering from exhibitionism, voyeurism and cocaine dependence. This last diagnosis was found to be in sustained full remission. Prior to being placed on SIST, P.H. also had a long history of burglary, trespassing and theft related arrests and convictions.

Published on: July 3, 2014

Office of Mental Health (OMH)

by Stephen Bilkis

In January 1992, respondent pleaded guilty to two counts of first-degree robbery, and single counts of first-degree burglary, first-degree rape, and first-degree sodomy. This plea satisfied charges arising from two separate criminal incidents—the robbery of a gas station attendant and a home invasion—for which respondent was arrested and indicted separately in 1988. He was sentenced to an indeterminate term of imprisonment of 8 to 16 years, running from his arrest.

A New York Criminal attorney said that Respondent was released to parole supervision in July 1999, after serving 11 years and eight months of his sentence. But in May 2000, he was arrested and indicted separately for three robberies. Thereafter, he pleaded guilty to two counts of third-degree robbery, for each of which he was sentenced to an indeterminate term of 2 to 4 years, and one count of criminal possession of a weapon in the fourth degree, for which he was sentenced to prison for one year. The indictment satisfied by Respondent’s plea to the weapon-possession count also accused him of sexual abuse. These sentences ran concurrently to each other but consecutively to the undischarged portion of the indeterminate sentence imposed on Rashid in 1992. He was subsequently released to parole supervision thereafter.

Respondent was returned to prison for violating the conditions of his parole in July 2006. He was released to parole supervision again in April 2007, but went back to prison after violating the conditions of his parole in August of that year. He was next released to parole supervision in early 2008. He was arrested for the misdemeanor crimes of petit larceny and criminal possession of stolen property in the fifth degree. Upon pleading guilty to petit larceny,

Published on: July 3, 2014

Criminal Procedure Law

by Stephen Bilkis

In this proceeding, a man seeks to enjoin the district attorney from prosecuting an indictment which was filed by the grand jury. The man asserts that the district attorney lacks jurisdiction to proceed.

The matter was started when the man was arrested and charged with assault in the second degree, a class D felony. He was also charged with two class A misdemeanors which includes resisting arrest and DWI and obstructing governmental administration in the second degree. The man was then arraigned upon the felony complaint in the criminal court.

The man’s attorney appeared in the court and the assistant district attorney made an oral application to the court for an order reducing the matter to a misdemeanor complaint by striking the charge. Then, the court responded by transferring the matter to a different part, and it is apparent that both the parties and the court itself took it to mean that the prosecution’s application had in fact been granted.

Published on: July 2, 2014

Finally, the sentence imposed was not excessive

by Stephen Bilkis

In this Criminal case, defendant filed an appeal from a judgment of the Nassau County Court, convicting him of rape and sodomy in different degrees.

A Nassau County Criminal attorney said that following defendant’s arrest in connection with the alleged sexual assault upon the 14 year old female complainant, the defendant gave a statement in which he admitted that he and the codefendant had, in one evening of January 1984, offered the complainant a ride in their car, given her alcoholic drinks, and then taken her to a secluded location where the two men had sexual intercourse with her in the back seat of the car. The defendant claimed, however, that he was not aware of the age of the complainant and that she had consented to sexual activities.

The Court addressed the defendant’s claim that the People failed to satisfy their burden of demonstrating that Nassau County had the necessary geographical jurisdiction over the prosecution of this case. The Court concluded that the evidence was sufficient to support the jury’s implicit finding that the exact location of the incident was unknown and that the People were entitled to rely upon the “private vehicle exception”. The defendant’s challenge to the propriety of the court’s charge on the issue of jurisdiction has not been preserved for review as a matter of law.

Published on: July 1, 2014

The California Supreme Court in March 1974

by Stephen Bilkis

The defendant is accused by indictment with various crimes associated with a controlled substance including the drug crime of Criminal Sale of a Controlled Substance in the Third Degree. He now moves for dismissal of this, the fifth count of the indictment, on the ground that Penal Law § 70.00, which provides the penalty for such crime, is unconstitutional, and alternatively, for dismissal of this count in the interest of justice.

A Suffolk County Drug crime lawyer said that the Defendant’s application is based upon the affidavit of a psychiatrist, who has examined the defendant and determined that the defendant is emotionally disturbed and in need of therapeutic intervention. The psychiatrist feels that unless the defendant receives appropriate treatment, suicide would be a distinct possibility. It is the doctor’s opinion that the intense psychiatric treatment and drug rehabilitation the defendant needs would not be available in a penal institution. The instant section, therefore, as defendant contends, is unconstitutional as to him in that it provides for a mandatory minimum period of incarceration of one year and constitutes cruel and unusual punishment.

The People cite s case, in opposition to this motion. In said case, the defendant leveled his attack upon the constitutionality of Article 220 of the Penal Law on the ground that cocaine, the substance the sale and possession of which the defendant was indicted for, was improperly classified by the legislature. It was the defendant’s contention that the improper classification violated the defendant’s right to equal protection.

Published on: July 1, 2014

The Court also rejected the claim of double jeopardy

by Stephen Bilkis

This is an appeal by defendant from a resentence of the District Court of Suffolk County, First District imposed on 17 June 2009 upon his admission to a violation of probation.

After being convicted of driving while intoxicated (Vehicle and Traffic Law § 1192[3]), defendant was sentenced on 4 May 2006 to three years of probation. The condition provided in the probation was for a term of 60 days in jail, and a fine. He served the imprisonment term and was thereafter released. On 2 June 2009, he admitted to a violation of probation. During the course of the admission proceeding, the District Court promised the defendant that he would sentence him to an additional 60 days incarceration in addition to the first 60 days he already served because of drunk driving, and terminate him from probation. On 8 June 2009, the sentencing date, the District Court imposed on him the sentence as what promised on June 2. The criminal defense counsel asked the court for the possibility of the Stop DWI facility to which the court issued a commitment sheet dated 8 June 2009 that stated “count 1, 60 days in SCJ in Stop DWI”. On that day, the defendant was first taken to the Suffolk County Jail and then released. He was released because the jail personnel understood his sentence to be simply 60 days, as opposed to an additional 60 days, and credited him with the time applicable to his original 60-day jail term.

After learning of the defendant’s release, the District Court first held an informal hearing with defense counsel and the prosecutor on 11 June 2009, and then held a formal resentencing proceeding in the presence of the defendant on 17 June 2009. It resentenced defendant to “120 days in jail which is an additional 60 days to the 60 days sentence that he already served”. The court imposed the resentence over a protest by the defendant that the resentencing violated CPL 430.10, and over the People’s agreement that the resentencing was improper. The court issued a new commitment sheet dated 17 June 2009 that stated “count 1. 120 days in SCJ with credit for time served”.