New York Criminal Lawyer Blog

Published on: June 5, 2014

CPL Section 40.40

by Stephen Bilkis

Defendant has moved to dismiss the information on the grounds that the current charge of possession of a controlled substance in the 6th degree should have been joined under CPL Section 200.20 with an earlier charge for DWI driving while intoxicated which the defendant pled guilty to in March 1974.

A Suffolk County Criminal attorney said that the charge of driving while intoxicated and the current charge are allegedly related because the controlled substance was seized at the same time as the defendant was apprehended for driving while intoxicated. The defendant also argues that the Court, in its discretion, should dismiss the information pursuant to CPL Section 170.40 on the grounds that the circumstances surrounding the prosecution on this charge require a dismissal in the interests of justice.

Although the defendant pled guilty to the charge of driving while intoxicated he was not arrested for drug possession until April 1974. Defendant argues that the usual procedure of the Suffolk County Police Department was not followed in this case and that he has unnecessarily been subjected to two separate arrests, two separate searches, and two separate arraignments and processing procedures.

Published on: June 5, 2014

CPL 400.21

by Stephen Bilkis

The judgment convicted appellant of the sale (first count) and possession (second count) of a narcotic drug, marijuana, sentenced him to a term of five to seven years on the first criminal count and suspended sentence on the second count. The evidence produced by the prosecution indicated that appellant had sold marijuana to a person, who was employed by the Suffolk County Police Department at $75 a week to uncover evidence and otherwise entrap suspects in connection with the sale of narcotics. He had entered such employ around June, 1965, after he had been convicted of petty larceny and given a suspended sentence.

A Suffolk County Criminal Drug Crime lawyer said that the sale was allegedly made in September 1965, in West Sayville, Appellant testified on his own behalf and denied that he had sold any marijuana. Moreover, he maintained that he was at his karate school, at the time of the alleged sale. His alibi was a plausible one and, moreover, there was testimony from ostensibly disinterested witnesses tending to support it, thus creating a close question as to whether he was present at the time and place when and where the sale allegedly took place. Yet, there was not a single instruction to the jury on alibi. Appellant’s attorney requested an instruction thereon.

In court’s opinion, the response of the court was not only inadequate but also unclear. Under the circumstances of the case, the court should have charged substantially as follows: ‘If proof as to an Alibi raises a reasonable doubt in the minds of the jury as to whether the accused was present at the place and time where and when the crime was committed, the accused is entitled to have the defense fairly treated like any other defense and is not obliged to establish that it was impossible for him to commit the act charged. If under the evidence tending, if true, to prove an Alibi, it may have been Possible for the defendant to have committed the crime, it is still for the jury to determine whether, if the evidence is true, he availed himself of the possibility it afforded. If proof as to an Alibi, when taken into consideration with all the other evidence, raises a reasonable doubt as to the defendant’s guilt, he is entitled to an acquittal’. In other words, it is not necessary or required that a defendant should show that it was impossible for him to have committed the crime. Under the circumstances, and in the interests of justice, the conviction should be reversed and a new trial ordered.

Published on: June 5, 2014

Mrs. D. testified that she and the defendant share a great marriage

by Stephen Bilkis

This is a proceeding wherein the defendant, D.S.D. entered a plea of not responsible by reason of mental disease or defect pursuant to CPL 220.15 to the crime of Criminal Possession of a Weapon in the Second Degree, and to other related offenses.

It was alleged that on 23 January 2004, the criminal defendant displayed a firearm while threatening to use it against the complainant, the defendant’s sister-in-law, and that said actions caused her fear of physical injury.

A commitment order, pursuant to CPL 330.20[6], was issued and the defendant was remanded to the care and custody of the State Commissioner of Mental Health. The defendant was confined in a secure facility pursuant to CPL 330.20.

Published on: June 4, 2014

The issue in this case is whether the evidence presented should be suppressed

by Stephen Bilkis

A Suffolk Marijuana Possession Lawyer said that, this is an appeal by defendant from a judgment of the Supreme Court, Suffolk County, rendered December 8, 1983, convicting him of criminal possession of marijuana in the first degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of defendant’s pretrial motion which sought suppression of physical evidence.

A Suffolk Criminal Lawyer said that, according to the People’s evidence adduced at the suppression hearing, defendant’s car was stopped for speeding on Montauk Highway by two police officers. A short time later, the Officer who was also patrolling the area, arrived at the scene. Although the officers had not called for assistance, he testified that he left his car and walked towards defendant’s car in order to check the inspection sticker on the windshield. As he walked from the back to the front of defendant’s car, on the driver’s side, he “happened to look down”, and saw a burlap bag, “the size of a bank bag”, laying on its side on the floor behind the driver’s seat. He noticed a white substance and some pills protruding from the top of the bag. Based on his training in the identification of controlled substances, he “felt” that the white substance was cocaine. He opened the car door, removed the bag and looked inside. Thereupon defendant was arrested. He also testified that when he was by the car, he smelled what he “felt was marijuana coming from the trunk”. About an hour after defendant was arrested, the trunk was searched, and a quantity of marijuana was found in the trunk in plastic bags. He testified that the marijuana found in the trunk had nothing to do with defendant’s arrest.

A Suffolk Unlawful Possession of Marijuana Lawyer said that, while the officer testified on direct examination that he was looking straight down through the driver’s window when he saw the burlap bag, it was brought out on cross-examination that there were two windows on the driver’s side of this two-door car and the officer equivocated as to which window he looked through. He stated, “I don’t recall. It might have been the driver’s window”. On redirect examination, after he looked at a photograph of the car in evidence, which he testified was “a fair and accurate picture of the defendant’s vehicle”, the officer testified that he had been looking through the rear window when he saw the burlap bag.

Published on: June 4, 2014

People v. Coniglio

by Stephen Bilkis

People v. Coniglio

Court Discusses Whether a Dying Declaration was Admissible in a Murder Trial

The defendant was indicted for two counts of murder and one count of attempted murder. The defendant requested a motion to suppress statements made by the deceased and by himself, and the gun and bullets found in defendant’s automobile. The motion to supress the dying declaration made by the deceased was not a true suppression motion as it called for the evidentiary ruling on the admissibility of the statement made. A suppression of evidence at a hearing was based on whether constitutional rights were violated by improper acquisition of evidence. It did not touch upon trial relevance of evidence, or admissibility, but function is simply to bar or admit on constitutional grounds.

Published on: June 4, 2014

People v Cabrera

by Stephen Bilkis

People v Cabrera

Court Discusses Whether the Conduction of a Checkpoint was Unconstitutional

The defendant was arrested for driving while intoxicated DWI after being stopped at a police vehicle checkpoint. The defendant requested a pre-trial suppression of his breathalyzer results on the ground that the conduction of the checkpoint was unconstitutional.

Published on: June 3, 2014

On 23 October 2003 the Board of Examiners of Sex Offenders (“the Board”) submitted a Risk Assessment Instrument (RAI) and…

by Stephen Bilkis

On 23 October 2003, pursuant to the Sexual Offender Registration Act (SORA), the Board of Examiners of Sex Offenders (“the Board”) submitted a Risk Assessment Instrument (RAI) and recommended that defendant be designated as a Risk Level 2 Sexually Violent Offender upon his release from custody, based on his conviction for Attempted Sexual Abuse in the First Degree and on an assessed score of 95. Specifically, the Board assessed: 10 points for use of forcible compulsion; 25 points for sexual intercourse, deviate sexual intercourse or aggravated sexual abuse with the victim; 20 points for being either a stranger to the victim or having a relationship established for the purpose of victimizing or a professional relationship; 5 points for a criminal history with no sex crimes or felonies; 15 points for a history of drug or alcohol abuse; and, 20 points for unsatisfactory conduct while confined or supervised including sexual misconduct.

The Board compiled a Case Summary “based upon a review of the inmate’s file which includes but is not limited to the pre-sentence investigation, prior criminal history and post-offense behavior.” This summary stated, in pertinent part, that:

“While incarcerated, defendant completed a sex offender counseling program. His final evaluation indicates that he accepted responsibility for his actions and demonstrated remorse and empathy. Defendant, who admitted to abusing alcohol and to drinking on the night of the rape, did complete a substance abuse program. His disciplinary history contains a sex offense wherein during a visit with his wife and mother, defendant was observed with his hand “in between his wife’s legs, outside of clothing, rubbing her crotch vigorously.” “He also was placed in Protective Custody in May 2003 after being slashed on his face for gang activity, i.e., unauthorized organization activity.”

Published on: June 2, 2014

Article 78 proceedings

by Stephen Bilkis

This is an Article 78 proceeding filed by petitioner UJC against the respondents, the New York Police Department (NYPD) and its commissioner, to compel the production of records relating to raids on certain bondage, dominance, sadism and masochism (BDSM) establishments, pursuant to New York’s Freedom of Information Law (FOIL) (Public Officers Law, “POL” §§ 84-90), and for attorneys’ fees and costs.

The background facts are as follows:

Petitioner UJC is a New York not-for-profit legal and social services corporation. It has several divisions and one of which is the Sex Crimes Workers Project. This division is engaged in protecting the rights of people referred to as “sex workers,” people profiled as “sex workers” and victims of human trafficking.

Published on: June 2, 2014

Risk Level 2 Sexually Violent Offender

by Stephen Bilkis

On 3 May 2000, at approximately 11:00 p.m. within the vicinity of East 23rd Street and White Plains Road in Bronx County, S was with her friend R. There they saw defendant, MW, whom R knew. R talked to him while S was standing close by. S and R then got into the back seat of defendant’s car. JS, defendant’s friend, was also inside the car. When R got out to purchase some cigarettes or marijuana, defendant drove off leaving R behind. Defendant and JS detained S in a car and refused to let her leave when she requested to do so. At that time, S called to R for help. When she attempted to get out, JS pulled her back inside the car and covered her mouth when she tried to scream for help. Defendant then proceeded to drive to a parking lot. Thereafter, he got into the back seat, grabbed S’ thigh and demanded that she place his penis into her mouth. Afterwards, defendant removed S’ pants, held her hands down, and engaged in a sexual intercourse with her against her will. Defendant and JS held S down while defendant inserted his penis into her vagina. JS then inserted his penis into S’ mouth and masturbated into her mouth while defendant held her hands down as she was repeatedly shouting, “No.” JS then struck S in the mouth. After that, S was driven and forcibly thrown out of the car one block from her home.

On 4 May 2000, defendant MW and co-defendant JS were arrested for acting in concert in committing the crimes of Kidnaping in the First Degree (Penal Law § 135.25 [1]), Rape in the First Degree (Penal Law § 130.35 [1]), Sodomy in the First Degree (Penal Law § 130.50 [1]), and Unlawful Imprisonment in the First Degree (Penal Law § 135.10). At the time of his arrest, when told that he was being charged with rape, defendant responded, “I kind of had that feeling.”

Subsequently, criminal defendant was identified by S and an eyewitness in separate corporeal lineups. DNA tests performed on the victim and defendant revealed that his semen and that of another male were found on a vaginal swab of the victim as well as on her panties.

Published on: June 2, 2014

The Court orally denied the defendant’s motion

by Stephen Bilkis

The defendant was charged with Driving While Intoxicated Per Se, Vehicle and Traffic Law, Driving While Intoxicated, Turning Movements and Required Signals, and Consumption or Possession of Alcoholic Beverages in Certain Motor Vehicles. After a trial by jury, the defendant was convicted of Driving While Intoxicated Per Se, Driving While Intoxicated and Consumption or Possession of Alcoholic Beverages in Certain Motor Vehicles.

The DWAI https://dwi.1800nynylaw.com/new-york-dwai-lawyer.htmldefendant moved prior to trial to preclude the People from eliciting the result of the defendant’s breathalyzer test for blood alcohol content as a three decimal point reading. The defendant contended that the New York Department of Health Rules and Regulations regarding the chemical analyses of blood, urine, breath or saliva for alcoholic content require that the result of a breathalyzer test be reported only to the second decimal point. The People did not oppose the defendant’s application and agreed to introduce evidence of the criminal defendant’s breathalyzer test result as a two decimal point reading. Thereafter, the video recording of the defendant’s breathalyzer test was admitted into evidence and published to the jury. The recording, however, displayed the defendant’s breathalyzer test result as a three decimal point reading. The defendant objected and moved for a mistrial, claiming that the error was so prejudicial that it deprived him of a fair trial. The Court orally denied the defendant’s motion, finding that the report of the defendant’s breath test to the third decimal point was a violation of a Department of Health rule which affected only the weight of the evidence and not its admissibility.

Unlike the 15 minute observation requirement, the rule that a breathalyzer test result be reported to the second decimal point does not implicate the reliability of the test. The failure to observe the defendant to ensure, for example, that he has not placed anything in his mouth before the test obviously may impact the accuracy of the result. In contrast, the report of a breathalyzer test result beyond the second decimal point is a ministerial error which is unrelated to the procedure or accuracy of the test. As such, the fact that a breath test result is reported to the third rather than the second decimal point is irrelevant to its admissibility. If anything, the failure to comply with the Department of Health reporting rule impugns the credibility of the witness who recorded the breath test result, not the test result itself. Consequently, the admission into evidence of the video recording displaying the defendant’s blood alcohol content as a three decimal point reading is not error which the fact finder is bound to disregard.