New York Criminal Lawyer Blog

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.

Published on: June 1, 2014

Mental Hygiene Law

by Stephen Bilkis

A Suffolk Criminal Lawyer said that, the defendant moves pursuant to Section 440.20 of the Criminal Procedure Law to set aside the sentence imposed upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law. This is a case of ‘second impression’–the first time this precise issue has been raised in the First Judicial Department.

The issue in this case is whether he could properly be sentenced under the Penal Law without first having been examined pursuant to Section 81.19 of the Mental Hygiene Law (formerly Section 207) where he was charged with a violation of Article 220 of the Penal Law.

Section 81.19(a) states: ‘Every person charged with a violation of section seventeen hundred forty seven-e, section seventeen hundred fifty-one or section seventeen hundred fifty-one-a of the Former penal Law as in force and effect immediately prior to September first, nineteen hundred and sixty-seven, which was committed after April first, nineteen hundred sixty-seven, And every person charged with a violation of any offense defined in article two hundred twenty of the penal law, and every person charged with any felony or misdemeanor or the offense of prostitution, which was committed after October first, nineteen hundred sixty-seven, who, while in custody or when he appears before the court, shall state, indicate or show symptoms, or it otherwise appears, that he is a narcotic addict, shall undergo a medical examination to determine whether he is a narcotic addict. This section of the Mental Hygiene Law was originally enacted in April, 1966, as part of a comprehensive plan to provide care, treatment and rehabilitation of drug addicts.

Published on: May 31, 2014

by Stephen Bilkis

A man has been charged with grand larceny in the second degree and attempted assault in the second degree. The man is accused of attempting to cause physical injury to a peace officer with intent to prevent the said officer from performing his lawful duty.

The man was then arraigned on those charges at which time he was served with a notice of impending grand jury proceeding. The man thereafter advised the district attorney of his desire to testify.

Subsequently, the man and his attorneys appeared at the place and time specified in the notice of presentment. But, a dispute arose between the district attorney and the man’s attorney as to whether the man would be permitted to testify. The entire discussion was recorded outside the presence of the grand jury.