New York Criminal Lawyer Blog

Published on: June 30, 2014

Warrants were lodged in Florida

by Stephen Bilkis

In an action against the property clerk of the Nassau County Police Department to recover possession of an automobile or, if possession could not be given, $1,000, its alleged value, together with $4,000 damages for its detention, a judgment was entered directing defendant to deliver to plaintiff the automobile, or $100, its value at the time of the trial, if possession could not be delivered, together with $151.75, the costs and disbursements of the action.

A Nassau County Criminal attorney said that in November, 1947 one was arrested in Nassau County on a warrant for the violation of his parole on a sentence imposed in Michigan on a conviction of rape. In Nassau County bail was fixed for his appearance on a hearing. When he failed to appear, the bail was forfeited and a warrant was issued for jumping bail.

Thereafter, or in March 1948 the Nassau County police were seeking to arrest a fugitive from justice, on those warrants. The police had received information that said criminal fugitive had a 1947 Cadillac sedan, the subject of this action. They found the plaintiff in possession of the car which bore Florida license plates. He had no registration or proof of ownership in himself but claimed that he had purchased the car. The police seized the car on that day and the property clerk has possession thereof.

Published on: June 29, 2014

Marijuana in the Fifth Degree (P.L. § 221.10(1))

by Stephen Bilkis

Here, the marijuana allegedly open to public view is not recovered and thus the sole allegation that the exchanged item was marijuana is conclusory. The deponent officer gives no description of the allegedly exchanged marijuana to support his conclusion. Further, it appears that the factual allegations regarding his conclusions based on his training and experience do not apply to the object that was allegedly exchanged with the other individual as he indicates that a field test was conducted on that marijuana and, as mentioned above, the marijuana allegedly exchanged in public view was not recovered. Simply, the police officer could not draw a conclusion based on the odor of a substance that he could not have smelled and he offers no physical description of the substance that was not recovered on which the court could reason he based his conclusion.

In addition, the allegations fail to establish any connection between the bag on the window sill and the defendant, or between the contents of the bag and the object that defendant allegedly exchanged with the other individual. Such connection would be needed for the court to reasonably infer from it that the exchanged object was marijuana. Faced with the bare facts in this accusatory instrument, the court is not able to infer that the item allegedly observed being exchanged by the defendant for money was marijuana.

Therefore, this court finds that the accusatory instrument fails to provide reasonable cause to believe that the defendant knowingly and unlawful possession of marijuana in a public place and open to public view. Accordingly, defendant’s motion to dismiss the charge of Criminal Possession of Marihuana in the Fifth Degree is granted.

Published on: June 29, 2014

People v Navarrette

by Stephen Bilkis

People v Navarrette

Court Discusses the Interpretation of the Word Operation in Section 600(2)(a) of the Vehicle and Traffic Law

The defendant was charged with a class B misdemeanor, attempted leaving the scene of an incident without reporting, under section 110.00 Penal Law and section 600 (2) (a)Vehicle and Traffic Law. The complaining witness testified that the defendant parked his car, turned off his engine. He further stated that he approached the motor vehicle as the defendant opened the door to exit; he was hit by the door, which flipped his bicycle over, and he was injured on the street. The complainant was hurt and bleeding and the defendant refused to give him his driver’s license information. The defendant left the scene, leaving his parked car without reporting the incident. At the close of the prosecution’s case, the defendant requested that the charge be dismissed pursuant to section 330.30 of the CPL. The defendant argued that the People failed to prove a substantial element, that is, he was operating the motor vehicle at the time of the accident. However, the People contended that the met their burden of proof once it was proven that the criminal defendant had recently operated the motor vehicle.

Published on: June 26, 2014

Court observed that there was no violation of procedural due process here.

by Stephen Bilkis

Defendant was indicted in January or February, 1974 for the crimes of criminal sale of a controlled substance (cocaine) in the third degree, criminal possession of a controlled substance (cocaine) in the third degree, criminal sale of a controlled substance marijuana in the fifth degree and criminal possession of a controlled substance marijuana in the sixth degree; in addition, in March, 1974 he was indicted for the crime of criminal possession of a controlled substance marijuana in the sixth degree.

A Suffolk County Criminal lawyer said that during his trial Defendant pleaded guilty to the crime of criminal possession of a controlled substance in the third degree in satisfaction of all counts of both indictments. At that time defendant was advised of the consequences of his plea and that the mandatory minimum sentence was one year to life. A month later, and before sentencing, his counsel moved to vacate the conviction and to substitute a youthful offender adjudication on the ground that the statute forbidding the application of youthful offender treatment to persons indicted for class A felonies was unconstitutional. The motion was denied and defendant received a sentence of one year to life.

On this appeal defendant contends that the statute is unconstitution and that he must be resentenced as a youthful offender.

Published on: June 26, 2014

People v. Philbert

by Stephen Bilkis

People v. Philbert

Court Discusses Whether the Defendant was given a Clear and Unequivocal Refusal Warning from a Warning Card

The defendant was charged with driving while intoxicated pursuant to section 1192 of the Vehicle and Traffic Law after the police officer observed the defendant’s slurred speech, bloodshot eyes and disheveled clothing. The defendant was read his Miranda rights and was then asked to submit to a chemical test. The defendant was read his refusal warning from a card and refused to do the test. The card stated that if the defendant refused to submit to a chemical test it may result in a revocation of the defendant’s license or operating privileges, whether or not he was convicted of the charges for which he was arrested for. He was further warned that the refusal would be introduced into evidence against him. The defendant after his refusal chose to submit to the test. However, the defendant eventually refused to submit to the chemical test after a failed attempt in taking the test according to the instructions of the officer. The defendant then sought to suppress the refusal warning.

Published on: June 25, 2014

Amsterdam Video plaintiffs

by Stephen Bilkis

This is a criminal proceeding wherein the appeal concerns the validity of New York City’s Amended Zoning Resolution governing the location of adult entertainment establishments throughout the five boroughs.

The court concludes that the Supreme Court correctly granted summary judgment declaring that the challenged ordinance does not violate plaintiffs’ constitutional rights of free expression.

The “adult” establishments at the center of this controversy offer various forms of sexual expression including bookstores, theaters, stores dealing in videotaped material and places of live entertainment. Over time, the industry has experienced a steady growth with sections of Manhattan and Queens showing the greatest development. By 1993, there were 177 adult establishments operating in New York City: 107 in Manhattan, 44 in Queens, 15 in Brooklyn, eight in the Bronx and three in Staten Island.

Published on: June 25, 2014

Court must consider whether the defendant’s freedom of action was significantly restricted.

by Stephen Bilkis

The defendant moves to suppress physical evidence and his statements. He is charged in two (2) indictments as follows: the defendant is charged with the crimes of burglary 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 in October 2011 a Detective, of the 104th Precinct Detective Squad, a nineteen (19) year veteran of the NYPD and a detective for almost thirteen (13) years, was assigned to investigate a burglary that took place at Middle Village, Queens. Another Police Officer, an eight (8) year veteran of the NYPD and also working with the 104th Precinct Detective Squad, was assigned to investigate a burglary that took place a day earlier; at Middle Village, Queens. They worked together on these cases.

In October 2011, the Det. placed a telephone call to the defendant and speaking in English, asked him to come to the precinct and speak with him. The defendant spoke to him in English. They scheduled an appointment two (2) days later. The Det. did not recall telling the defendant why he needed to speak to him. The Det. did not tell the defendant that he would be coming in to surrender. The Det. had been given the defendant’s name, address and telephone number by the co-defendant, who had been arrested earlier that day. The Co-defendant had told the detective that the defendant was with him when he committed the burglaries and that he had driven the defendant’s minivan during the burglaries.

Published on: June 24, 2014

People v. LeBeau

by Stephen Bilkis

People v. LeBeau

Court Discusses Lesser Included Offenses of Vehicular Assault

The defendant was arrested and charged after he struck a pedestrian with his taxi after making a U-turn. The defendant admitted to the officer that the cause of the accident as a result of him drinking alcohol, taking cocaine and lack of sleep for a protracted period of time prior to the accident. The defendant was placed under arrest. The pedestrian was taken to the hospital after sustaining serious injuries. The officer also observed that the defendant had alcohol on his breath, bloodshot eyes and slurred speech during questioning. He submitted to a breathalyzer test where he registered a .08 percent blood alcohol content. The defendant was indicted for vehicular assault pursuant to section 120.03 of the Penal Law, DWI driving while impaired by drugs pursuant to section 1192.4 of the Vehicle and Traffic Law and DWAI driving while impaired by alcohol pursuant to section 1192.1 of the VTL.

Published on: June 22, 2014

The court further stated that the man has no basis to complain about the length of the sentence

by Stephen Bilkis

A man filed an appeal from the decision of the Supreme Court convicting him of rape in the first degree, two counts of criminal sexual act in the first degree and incest, upon his plea of guilty and imposing sentence. The appeal brings up for review an order of protection issued at the time of sentencing.

With regards to the man’s contention that his plea was not knowing and voluntary, the court states that it is unpreserved for appellate review since he failed to move to withdraw his plea. Sources revealed that the narrow exception to the preservation rule, which arises when the offender’s plea recitation of the facts underlying the crime casts significant doubt on his guilt or otherwise calls into question the voluntariness of the plea, is inapplicable in the case of the man.

The court further stated that the man has no basis to complain about the length of the sentence imposed to him, since the sentence was part of the negotiated plea bargain. Contrary to the man’s contention, the Supreme Court did not inefficiently exercise its discretion in finding the duration of the final order of protection entered against him.

Published on: June 22, 2014

Court would sentence defendant to four months’ incarceration.

by Stephen Bilkis

A Queens Criminal Lawyer said that, defendant moves pursuant to Criminal Procedure Law §440.10(h) to vacate the judgments of conviction in six cases, arguing that his prior plea attorney failed to provide effective assistance of counsel during and prior to his guilty pleas in the Queens Misdemeanor Treatment Court (QMTC). Defendant, who is currently facing removal proceedings initiated by the United States Department of Homeland Security, claims that he advised his plea attorney that he was not a citizen but a lawful permanent resident, and that his plea attorney failed to advise him regarding the immigration consequences of his guilty pleas. Defendant, who was required to complete drug treatment as a condition of his pleas, also alleges that had plea counsel correctly advised defendant regarding the immigration consequences of his pleas, he would not have pled guilty and would have proceeded to trial on his six cases.

A Queens Drug Crime Lawyer said that, soon after defendant filed his motion, the United States Supreme Court decide the 2010 case, which held that counsel for criminal defendants are constitutionally obligated to advise their non-citizen clients regarding the adverse immigration consequences of their guilty pleas. Defendant’s motion to vacate raises important questions regarding, inter alia, the scope of defense counsel’s in the 2010 case-imposed duty to provide immigration advice to non-citizen defendants charged with removable/deportable offenses, particularly where, as here, such defendants enter drug treatment in exchange for a promise that the underlying pleas would be vacated and the charges dismissed. The motion to vacate also raises important questions regarding the scope of the Court’s review in determining whether there is a reasonable probability that defendant would have insisted on going to trial had he been properly advised as to the immigration consequences of his guilty pleas.

Defendant was arrested a total of six times over a nine month period in 2009. Initially, defendant had three open cases referred to the QMTC. The charges in those cases included Criminal Possession of Stolen Property in the Fifth Degree (PL §165.40) (two counts), Criminal Possession of a Controlled Substance in the Seventh Degree (PL §220.03), Assault in the Third Degree (PL §120.00), Petit Larceny (PL §155.25) and Harassment in the Second Degree (PL §240.26). These cases were referred to the QMTC after the People offered a plea disposition which would have required defendant to plead guilty to an unspecified class A misdemeanor with a sentence of three years’ probation on one case; an unspecified B misdemeanor with a sentence of a conditional discharge and either five days of community service or a $250 fine on another case; and a violation, Disorderly Conduct (PL §240.20), with a sentence of a conditional discharge.