New York Criminal Lawyer Blog

Published on: June 14, 2014

New York State Department of Corrections

by Stephen Bilkis

In this case, defendant man was indicted for two counts of Criminal Sale of a Controlled Substance in the Third Degree, two counts of Criminal Possession of a Controlled Substance in the Third Degree, two counts of Criminal Possession of a Controlled Substance in the Fifth Degree, two counts of Criminal Use of Drug Paraphernalia in the Second Degree, and Unlawful Possession of Marijuana.

The defendant man pled guilty to Criminal Sale of a Controlled Substance in the Third Degree, a B felony. In exchange for his guilty plea, the defendant was to be sentenced to a term of incarceration of either two to six years, if a previous conviction was overturned by the Appellate Division, or a term of four and one-half to nine years, if the previous felony conviction was not reversed and he was considered a predicate felon. At the time of his plea, he was told by the Court that if he failed to return for sentencing he would face eight and one third to twenty-five years or twelve and one half to twenty-five years incarceration, depending on whether he was considered a predicate felon.

The defendant man failed to appear for sentencing and a bench warrant was issued for his arrest. On December 18, 2008, the defendant was returned involuntarily on the outstanding bench warrant after being arrested for burglary. At that time, the defendant also had a pending indictment for Bail Jumping in the First Degree, as a result of his failure to return for sentencing. The defendant man was finally sentenced in this matter to an indeterminate term of imprisonment of seven to twenty-one years. He is currently incarcerated pursuant to this sentence.

Published on: June 13, 2014

People v Dzvonyk

by Stephen Bilkis

People v Dzvonyk

Court Discusses Whether the Defendant’s Constitutional Right was Violated after Failure to give Refusal Warning in his Native Language.

The defendant, who was a Russian immigrant, was arrested and charged with three counts of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs, two counts of Driving While Intoxicated DWI, and one count of Aggravated DWI. The defendant was arrested after the police came to the scene of an accident which the criminal defendant was involved in. One of the officer observed that the defendant’s breath smelled of alcohol, bloodshot eyes, slurred speech and was unsteady on his feet. The defendant was arrested and taken to the precinct. At the precinct, the defendant agreed to submit to a chemical test where he registered a .233 blood alcohol content. The defendant then requested to suppress the results of the chemical test because it was involuntary as the police officer did not give the warning in his native language, thus violating his federal constitutional rights.

Published on: June 12, 2014

Officer conducted his search of the Defendant’s vehicle at the scene

by Stephen Bilkis

A Suffolk Marijuana Possession Lawyer said that, the defendant is charged, with Criminal Possession of Marijuana in the Fifth Degree, in violation of Penal Law § 221.10(1), and, , with Driving While Intoxicated DWI, Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, Operating an Uninsured Vehicle, Operating Without a Seatbelt, and Unauthorized Possession of a License, in violation of VTL §§ 1192(2), 511(1), 319(1), 1229(c)(3)(a) and 509(6), respectively, as well as Possessing Alcohol while being under twenty-one (21) years of age, with intent to consume, in violation of Alcohol Beverage and Control Law § 65-c. All of these charges arise out of the same incident of October 14, 2007.

A Suffolk Criminal Lawyer said that, on October 14, 2007, at approximately 9:19 p.m., the Officer, an eleven (11) year member of the Nassau County Police Department, was on patrol in the vicinity of the South Gate Shopping Center located in Massapequa Park, New York. At that time, the Officer was alone, in uniform, and traveling in a marked police car, driving from the back to the front of the shopping center. As he came around to the front parking lot, Officer observed a dark vehicle parked approximately fifty (50′) feet away, within the confines of a parking space, in front of the King Kullen supermarket, with two (2) males standing outside the vehicle, one (1) of which he observed on the passenger’s side of the vehicle making the motion of throwing objects at the supermarket. Upon seeing this, Officer turned off his headlights so that he might further observe these individuals. Shortly thereafter, upon seeing the Officer, the two (2) individuals entered the vehicle by which they were standing and began to pull away. As the passenger got into the vehicle the Officer observed him place an object which looked like a beer bottle down beside the vehicle.

A Suffolk Drug Possession Lawyer said that, seeing this, the Officer pulled up behind the vehicle and activated his emergency lights and siren to effectuate a stop. The vehicle traveled a short distance, now no longer within a single parking space, but straddling the lines between two (2) spaces. Upon stopping the vehicle, Officer approached the driver, who he later identified as the Defendant, and asked for his license, registration and insurance card. The Defendant produced a license and registration, but not an insurance card. At that time, he also observed an open beer bottle next to where the vehicle had been parked; and, upon looking into the vehicle, saw an unopened bottle of beer on the floor behind the passenger. While standing next to the Defendant’s vehicle, approximately eighteen (18″) inches away from the Defendant, the Officer noticed the Defendant’s speech to be slurred, his eyes bloodshot and glassy and the odor of alcohol emanating from his breath. The Officer testified that as he spoke to the Defendant, the Defendant was relatively cooperative, but was not forthcoming with his answers to the officer’s questions. The Officer then asked the Defendant to step out of the vehicle for the purpose of conducting field sobriety tests (“SFSTs”).

Published on: June 12, 2014

People v Scott, 63 NY2d 518 [1984]

by Stephen Bilkis

At about 1:00 a.m. on 2 September 2007, defendant ND’s vehicle was stopped at a New York State Police sobriety checkpoint on Fluvanna Avenue in the City of Jamestown. For allegedly displaying certain outward indicia of intoxication and failing four out of five field sobriety tests, defendant was asked to give a breath sample. This resulted in a reading of a .13% blood alcohol content level.

Consequently, the criminal defendant was charged with operating a motor vehicle while having .08 of one per centum or more by weight of alcohol in her blood pursuant to Vehicle and Traffic Law § 1192 [2] and operating a motor vehicle while in an intoxicated condition pursuant to Vehicle and Traffic Law § 1192 [3].

Defendant then moved to suppress any statement attributed to her, the results of any chemical analysis of her breath, and all other evidence allegedly obtained from her; and, challenged the constitutionality of the checkpoint stop on the ground that the New York State Police failed to follow their own self-established, written guidelines.

Published on: June 11, 2014

Section 331.11 of the Postal Manual

by Stephen Bilkis

In this Drug crime, a motion to suppress physical evidence upon which a hearing was ordered. At the conclusion of the People’s proof the Defendant moved to dismiss and the Court directed that a memorandum of law be submitted as to the ‘standing’ of the defendant to suppress the evidence.

A Suffolk County Criminal lawyer said that in February 1968, a Detective attached to the Narcotics Squad of the Suffolk County Police Department, received a telephone call from a postal inspector at the Rocky Point, Suffolk County County, New York, Post Office.

The detective was advised that a package had been received addressed to an individual. This call was made to him pursuant to a prior request by the Narcotics Squad that it be notified if said individual received any packages since the Squad suspected him of dealing in criminal narcotics. Together with another detective, the detectives went to the Post Office at about 2:30 p.m. where he met with the postmistress and was shown a package consisting of brown paper covering a shoe box within which was newspaper and a brown paper bag containing a plastic bag which in turn contained approximately a kilo of marijuana. All of this was not visible to the detectives at that time. The package was received at the Post Office, and is so marked, in a damaged condition with the brown paper torn off one of the ends and the shoe box opened about 1 1/2 inches in width along the entire and of the shoe box.

Published on: June 10, 2014

Penal Law §70.25(1)(a)

by Stephen Bilkis

A Queens Criminal Lawyer said that, this is a proceeding for judgment pursuant to Article 78 of the CPLR that was originated by the petition of petitioner, including his June 23, 2010 Affidavit in Support of Order to Show Cause, verified on June 23, 2010 and filed in St. Lawrence County Clerk’s office on July 9, 2010. Petitioner, who is an inmate at the Riverview Correctional Facility, is challenging the time computation associated with his current incarceration in DOCS custody.

A Queens Drug Crime Lawyer said that, the Court issued an order to Show Cause on July 23, 2010 and has received and reviewed respondents’ Answer and Return, including confidential Exhibits B and C, verified on September 24, 2010. By Letter Order dated November 7, 2010 the respondents were directed to supplement their answering papers by addressing the issue of petitioner’s entitlement to parole jail time credit for the period from May 6, 2009 to June 8, 2009. In response thereto the Court has received and reviewed respondents’ Supplement to Verified Answer and Return dated December 1, 2010. The Court has also received and reviewed petitioner’s Reply, filed in the St. Lawrence County Clerk’s office on December 10, 2010.

A Queens Criminal Lawyer said that, on January 19, 2006 petitioner was sentenced in Supreme Court, Bronx County, to a determinate term of 2½ years, with 3 years’ post-release supervision, upon his conviction of the crime of Attempted Robbery. He was received into DOCS custody on February 8, 2006, certified by the New York City Department of Correction as entitled to 561 days of jail time credit (Penal Law §70.30(3) and Correction Law §600-a). At that time the maximum expiration date of petitioner’s 2½-year determinate term was calculated as January 21, 2007. On September 11, 2006 petitioner was conditionally released from DOCS custody to the judicially imposed 3-year period of post-release supervision. As of the September 11, 2006 conditional release date, DOCS officials calculated that petitioner still owed 4 months and 10 days against the 2½-year term of the determinate sentence. That time period was properly held in abeyance by DOCS officials pursuant to Penal Law §70.45(5)(a).

Published on: June 9, 2014

Police Officer arrived at the store after the crime had been committed

by Stephen Bilkis

A Queens Petit Larceny Lawyer said that, the defendant is charged with one count of petit larceny (Penal Law §155.25) and one count of criminal possession of stolen property in the fifth degree (Penal Law §165.40). The defendant has moved to suppress statements on the ground that they were involuntarily made. This court conducted a Huntley hearing on December 18, 2006. At the hearing, Police Officer testified on behalf of the People. The defendant did not testify nor present any witnesses.

A Queens Criminal Lawyer said that, the Police Officer is employed by the New York City Police Department and has been with the Police Department for five years. During this time period, the officer has made nearly 100 arrests and about half of these has been for petit larcenies. He is assigned to the 112th Precinct. On November 30, 2006, the officer was on patrol, in uniform and with a partner, another Police Officer. The officers were in marked car. At about 8:46 PM, the officer received a radio run for a 10-12 which means that a security guard is holding someone. The officers went to a Home Depot located at 75-09 Woodhaven Boulevard in Queens County. The trip took four minutes. They proceeded to the security office, in the rear of the store and were met by two security guards, one individual, and the defendant. The officer described the office as small and being about 4 feet by 8 feet. The defendant was seated in a swivel chair with his hands down behind him. The two security guards were on the defendant’s left completing their paperwork.

A Queens Shoplifting Lawyer said that, the Police Officer asked the individual what happened and he told the officer that he was walking the floor inside the store and observed the defendant remove an item, a MP3 player, from the shelf, place it in his pants pocket and proceed to walk outside the store. Police Officer then asked the defendant what happened. The defendant shook his head and said “I messed up. I should have paid for it.” The officer explained that he was still investigating to determine if a robbery crime had been committed and to ensure that the defendant had no receipt for the merchandise. The officer did not issue Miranda warnings to the defendant.

Published on: June 8, 2014

Petitioner has not been a fugitive for over 13 years

by Stephen Bilkis

Petitioner was charged under a governor’s warrant with being the South Carolina fugitive, who allegedly escaped from the Anderson South Carolina Stockade in 1976. The fugitive was serving a sentence of seven years for passing several bad checks and a probation violation from a prior grand larceny. Petitioner has lived continuously at the same address in Suffolk County, New York since 1983. He was married in 1987, helping to raise his wife’s three children from a prior marriage. He and his wife also had two children of their own in 1988 and 1992.

A Suffolk County Criminal lawyer said that in 1993, Petitioner was arrested on an extradition demand from South Carolina. As a result of information thereafter provided to then South Carolina Governor, the Governor chose not to pursue the extradition.

Twelve and a half years later in October, 2005, while returning from a vacation, Petitioner was arrested at JFK Airport on a computer entry of his being wanted in South Carolina. When the necessary paperwork was not filed within ninety (90) days, the resultant pending charge was dismissed in Criminal Court, Queens County 2006. Petitioner returned to his everyday life.

Published on: June 7, 2014

The Court dismissed the motion

by Stephen Bilkis

This is a Criminal case where the defendant moves to dismiss the indictment against him upon the ground that there is insufficient evidence to sustain any of its 44 counts charging Forgery in the Second Degree and the single count of Grand larceny in the Second Degree.

In a case where herein defendant was the defendant, the Court dismissed a single count indictment for Second Degree Forgery with respect to one check in the amount of $250.00. That check had been made payable to a person by the defendant who endorsed with that name and then his own. Larceny was not charged.

The Court pointed out in that opinion that defendant could create a fictitious payee, intending him to have no interest in the check and then negotiate it as a bearer instrument. There was no evidence in that case that the defendant had the intent to defraud, deceive or injure, necessary elements of Forgery in the Second Degree.

Published on: June 6, 2014

Fam. Ct. Act §351.1 [2

by Stephen Bilkis

This case is a consolidation of eight juvenile delinquency proceedings for a dispositional hearing after a determination that each respondent has committed at least one act which, if committed by an adult, would constitute a crime.

In each case, the court requested that the New York City Department of Probation conduct an investigation into the juvenile’s circumstances and that a written report be prepared for the dispositional hearing.

The court discovered that the New York City Department of Probation employs a computer-based program which contains an inherent bias which results in more favorable and less severe dispositional recommendations being made to the Family Court for female juvenile delinquents than for similarly situated male juvenile delinquents.