New York Criminal Lawyer Blog

Published on: May 25, 2014

The defendant testified in his own behalf

by Stephen Bilkis

This was an appeal by the defendant from a judgment of the Supreme Court, Queens County, rendered on 14 June 1972, convicting him of attempted criminal possession of a weapon, among others, as a felony, upon his guilty plea, and imposing sentence. The appeal brought for review an order of the same court, dated 25 May 1972, which denied defendant’s motion to suppress physical evidence.

On 10 March 1972 at about 12:30 A.M., Patrolman RL and his partner, Patrolman B, were stationed in an unmarked car in the vicinity of 107th Avenue and New York Boulevard in Queens. Their vehicle was painted to look like a taxicab, but contained a police radio. He described the area as ‘a very heavy drug crime prone location’, where numerous arrests for stolen cars and other stolen property are made. The officers parked the vehicle about a half block from a bar on New York Boulevard which was ‘under observation’. They were facing toward the bar and were parked across the street from it.

At that time they observed a late model Cadillac, driven by herein defendant MF, pulled up and double parked outside the bar. The only one in the car was the driver as he did not get out of the car. The car remained double parked for ‘not even one minute’, and then drove off. The car just went around the block. Then the car appeared again a short time later, double parked in the same place and, within ‘less than a minute’, drove off a second time. At that point Patrol RL told his partner that he ‘intended to stop the car and check it out.’

Published on: May 24, 2014

New York law

by Stephen Bilkis

A man was sentenced to two years probation following his plea of guilty to attempted home invasion in the first degree in another state. He was subsequently sentenced to one hundred eighty days in jail.

Through a felony complaint, the man was charged with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and seventh degrees. An indictment was filed and the man was charged with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.

Subsequently, the man plead guilty to criminal sale of a controlled substance in the third degree with the promise that upon the completion of a drug rehabilitation program, supervised by one institution, he would be allowed to withdraw his plea of guilty. The court stated that the man would re-plead to a misdemeanor and receive a sentence of time served. If, however, he failed to complete the drug rehabilitation program, the court promised to sentence him to four and half to nine years in jail.

Published on: May 24, 2014

McArdle v. New York City Housing Authority

by Stephen Bilkis

McArdle v. New York City Housing Authority

Court Discusses Whether the Judge Acted Prudently in Exercising his Discussion

The plaintiff who was the parent of an infant brought an action to recover damages for false imprisonment and assault committed by the defendant. The infant, who was a 19 years old, was arrested by a security guard employed by the defendant on July 15, 1972 at 12:30 A.M. The security guard charged the infant with driving an automobile while intoxicated

Published on: May 22, 2014

This precludes by definition (PL 155.05)

by Stephen Bilkis

Defendants are each charged with the crimes of Grand larceny in the Second Degree and Falsifying Business Records in the First Degree. The indictment alleges that between September 1975 and December 1976, the defendants, acting in concert, stole monies in excess of $1500.00 from a Park Psychiatric Center, and that they also, acting in concert and with intent to defraud in order to commit the crime of larceny, made false entries upon the business records of the Park, to wit, monthly time and work attendance forms.

A Suffolk County Criminal attorney said that the Park is a mental hygiene hospital operated by the State of New York and defendants were employees during the relevant period.

The substance of the larceny charge is that Klein submitted time and attendance sheets showing that she worked certain hours for which she was paid, whereas, in fact, she was then attending nursing school at another location and that defendants by approving and submitting these inaccurate and false “business records”.

Published on: May 22, 2014

Public Health Law Sec. 3387(3).

by Stephen Bilkis

A Suffolk Criminal Possession of Marijuana Lawyer said that, this action was commenced by plaintiffs seeking a declaratory judgment that Local Law No. 23 of 1983 of the City of New York (“the ordinance”) is unconstitutional. Local Law 23 amended Chapter 22 of the Administrative Code of the City of New York. Plaintiffs moved before this court on August 4, 1983 for a preliminary injunction enjoining enforcement of the ordinance pending determination of the action. The ordinance was to go into effect on August 5, 1983. A temporary restraining order was granted by this court pending the hearing of the motion for a preliminary injunction on August 9, 1983 which was adjourned at the defendant’s (“City”) request. The City then stipulated with the plaintiffs not to enforce the ordinance pending the adjourned date of the hearing. In the interim the City has moved, and the plaintiffs cross-moved for summary judgment.

A Suffolk Marijuana Possession Lawyer said that, the ordinance at issue prohibits the sale of drug paraphernalia. It is criminal in nature and provides that anyone who knowingly sells, offers for sale or displays any cocaine spoon, marijuana pipe, hashish pipe or other drug related paraphernalia is guilty of a Class A misdemeanor. The ordinance is based upon the Model State Drug Paraphernalia Act drafted by the Department of Justice. Plaintiff is the owner of “Out of Our Drawers” and Plaintiff owns “The Village Smoke Shop” both located in Greenwich Village. Plaintiffs challenge the ordinance on a number of constitutional grounds. First, they allege that the ordinance is preempted by New York State Law, in particular Article 39 of the General Business Law, Penal Law Secs. 220.45 and 220.50 and Public Health Law Sec. 3387(3). Plaintiffs contends that these State statutes evidence an intent on the part of the State Legislature to occupy the entire field of drug paraphernalia regulation and thereby preempt local legislation in that area.

A Suffolk Criminal Lawyer said that, plaintiffs also assert that the ordinance is void for vagueness and therefore violative of Article I, Section 6 of the New York State Constitution and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The ordinance is also challenged on the ground that it infringes upon protected speech in violation of Article I, Section 8 of the New York State Constitution and the First and Fourteenth Amendments to the United States Constitution. Plaintiffs also assert an equal protection argument and, finally, contend that the ordinance is not rationally related to a legitimate government purpose.

Published on: May 22, 2014

People v. Vargulik

by Stephen Bilkis

People v. Vargulik

Court Discusses Whether Failure to Comply with Discovery Demand Should Result in Suppression of Chemical Results

The defendant was indicted for operating a motor vehicle while under the influence of alcohol, vehicular manslaughter and criminal negligent homicide. The defendant was the driver of a motor vehicle that killed a passenger in her car after she crashed into a tree. Three beer cans were recovered from the car, one unopened and two empty cans. The defendant went to the hospital to receive treatment and was later arrested. She consented to an Alco-Sensor” test where .15 percent blood alcohol content was recorded. The defendant requested an omnibus motion to suppress the results of the blood test on the ground that there was insufficient evidence for probable cause in the absence of the chemical test. The People attempted to introduce evidence that indicated that the defendant had consumed alcohol which was probable cause for the arrest after the results of the blood test. The defendant’s Queens County Criminal Attorney objected to the introduction of the blood test into evidence because of the prosecution’s failure to provide the report of the breath test to the defendant in response to the discovery demand, pursuant to section 240.40 of the Criminal Procedure Law. This resulted in the court concluding that the DWI test result was prohibited from being introduced into evidence. The People appealed the decision.

Published on: May 21, 2014

People v Noreiga

by Stephen Bilkis

People v Noreiga

Court Discusses Whether the Warrantless Search of the Defendant’s Motor Vehicle was Legal

The defendant was arrested and charged with two counts of driving while intoxicated, one count of failing to obey a traffic control device and one count of consumption or possession of alcoholic beverage in a motor vehicle.

Published on: May 20, 2014

Penal Law § 130.15

by Stephen Bilkis

In November 2009, the Suffolk County District Attorney indicted the respondent on one count of grand larceny in the second degree, in violation of Penal Law § 155.40, one count of forgery, in violation of Penal Law § 170.10(2), one count of criminal possession of a forged instrument in the second degree, in violation of Penal Law § 170.25, and one count of insurance fraud in the third degree, in violation of New York Penal Law § 176.20.

A Suffolk County Criminal attorney said that in February 2011, in the County Court, Suffolk County, the respondent was convicted, after trial, of grand larceny in the second degree, in violation of Penal Law § 155.40, and insurance fraud in the third degree, in violation of Penal Law § 176.20.

The respondent’s conviction emanated from his theft of money paid by his insurance carrier, to be held in escrow, for the reconstruction of his Westhampton Beach home after it was destroyed by fire in 2008. Countrywide Home Loans, the lender holding the mortgage on the respondent’s home, never received or endorsed the check issued by the insurance company for reconstruction of the house.

Published on: May 20, 2014

People v DeSimone.

by Stephen Bilkis

This is an appeal by the defendant from a judgment of the Supreme Court, Kings County rendered 5 May 2008 convicting him of rape in the first degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of suppression of identification testimony.

The court reverses the judgment, on the law, vacates the plea, suppresses the identification testimony, and remits the matter to the Supreme Court, Kings County, for further proceedings consistent herewith.

The defendant agreed to plead guilty to sex crimes of rape in the first degree in exchange for a promised determinate sentence of nine years of imprisonment on the day after the Supreme Court denied suppression of identification testimony. During the course of the ensuing plea allocution, the Supreme Court advised the criminal defendant of the terms of its sentencing commitment, and briefly explained that he would be waiving his right to appeal.

Published on: May 19, 2014

CPL 460.50 (subd. 5)

by Stephen Bilkis

A Suffolk Criminal Lawyer said that, this is an appeal by defendant from a judgment of the Supreme Court, Suffolk County, rendered July 13, 1983, convicting him of grand larceny in the second degree, upon a jury verdict, and sentencing him to a definite prison term of one year.

A Suffolk Grand Larceny Lawyer said that, in another case defendant appealed from a judgment of the County Court, Suffolk County, rendered June 3, 1985, convicting him of burglary in the first degree, assault in the first degree and grand larceny in the third degree, upon a jury verdict, and imposing sentence.

The issue in this case is whether the court erred in convicting the defendant of grand larceny in the second degree, upon a jury verdict, and sentencing him to a definite prison term of one year.