New York Criminal Lawyer Blog

Published on: May 14, 2014

Trippe v Trippe, Matter of Thomas and Matter of Beyer

by Stephen Bilkis

This is a proceeding wherein pursuant to an ex parte order of the Supreme Court, Queens County, entered 3 December 1971, the plaintiff, RMB, was appointed guardian ad litem for the infant ‘R’ and all similarly situated members of a class of unborn infants of less than 24 weeks’ gestation scheduled for abortion in public hospitals under the operation and control of the defendant New York City Health and Hospitals Corporation.

The purpose of the appointment was to commence this action for a judgment declaring that subdivision 3 of section 125.05 of the Penal Law is unconstitutional and for a permanent criminal injunction restraining the defendant Hospitals Corporation from performing abortional acts other than those necessary to preserve the life of the female.

By order to show cause dated 3 December 1971, the guardian moved for a preliminary injunction pending the trial of the action, restraining the above-mentioned Hospitals Corporation from proceeding with abortions other than those necessary to preserve the life of the female.

Published on: May 14, 2014

People v. Niedzwiecki

by Stephen Bilkis

People v. Niedzwiecki

Court Discusses Whether a Polish Immigrant Received Clear and Unambiguous Refusal Warning

The defendant was a polish immigrant who was arrested by the police for DWI driving while intoxicated. The defendant was initially stopped by the police after he operated his vehicle without his headlights and was weaving while driving. The defendant was read his Miranda rights in English even though it was evident that he had a strong foreign accent. The defendant was asked to submit to a breathalyzer test and requested the assistance of a Polish “translocator”. The criminal defendant refused to submit to a breathalyzer test and later requested to supress his refusal because the warning was not unequivocal in a language that he could understand.

Published on: May 13, 2014

Section 139 of the Code of Criminal Procedure

by Stephen Bilkis

In this Criminal case, the People appealed from an order, which granted the defendant’s motion to dismiss the Indictment, with leave to represent the matter to the Grand Jury on the ground that he was deprived of his right to appear before the Grand Jury pursuant to CPL 190.50.

A Queens County Criminal lawyer said that after an incident which occurred in Queens County in October 1995, the defendant was arraigned on a felony complaint. The felony complaint charged the defendant with robbery in the third degree and grand larceny in the fourth degree.

At his arraignment, the defendant was duly served with notice that the charges in the felony complaint would be presented to the Grand Jury. The defendant ultimately declined to testify before the Grand Jury. The defendant was subsequently charged in an indictment with robbery in the first degree and robbery in the third degree.

Published on: May 13, 2014

Violation-of-Probation hearing

by Stephen Bilkis

On 12 August 1992, the defendant was sentenced as a Youthful Offender to time served and five years of probation upon his guilty plea to robbery in the second degree. On 31 January 1994, the Probation Department filed a Declaration of Delinquency and Specifications alleging that the defendant had violated the terms and conditions of his probationary sentence by knowingly and unlawfully selling a narcotic drug. The same allegation led to the defendant’s indictment for criminal sale of a controlled substance in the third degree. He has pleaded not guilty to both the specification and the new indictment.

The defendant filed this motion presenting the issue of whether a Violation-of-Probation proceeding, based upon the defendant’s alleged commission of a newly-indicted drug crime, must be held in abeyance until the new charges were resolved by way of guilty plea or trial.

The defendant contended that all proceedings on the violation of probation must be held in abeyance pending resolution of the charges in the indictment. He relied largely on the dictum enunciated in People v Amaro (1974) where the Court held that a judicial declaration of delinquency and the issuance of a bench warrant for a probationer’s arrest were not authorized upon a mere allegation or showing that the probationer has been arrested for a new offense.

Published on: May 12, 2014

Massachusetts and Queens County offenses were different

by Stephen Bilkis

A Queens County Criminal lawyer said that petitioner stole a car and drove it to Boston, Massachusetts. About three weeks later he was indicted in Boston for three offenses, one of which was the offense of operating the stolen car in Boston, without authority from the owner, after petitioner’s right to operate automobiles in Massachusetts without a license had been suspended.

After a trial in which the owner of the car testified, petitioner was convicted of all three offenses; he was given a suspended sentence of two years for the offense of driving without authority, and a sentence of six months for the other offenses. The suspension of the two-year sentence was thereafter revoked, and he eventually served both sentences.

In the meantime, petitioner had been indicted in Queens County for the theft of the first car. The indictment contained two counts, namely (a) taking, removing, operating and driving the car in Queens County, for the operator’s own profit, use and purpose, and without the owner’s consent, Penal Law, § 1293-a; and (b) ordinary grand larceny, Penal Law, § 1290. After his release from the Massachusetts jail, petitioner returned to New York and appears to have been apprehended. He thereupon pleaded guilty to petit larceny under the Queens County indictment, and was remanded to the city prison for sentence.

Published on: May 12, 2014

People v. Trujillo

by Stephen Bilkis

People v. Trujillo

Court Discusses Whether the Sentenced Imposed by the Court on a Persistent Offender was Excessive

The defendant was convicted of driving while intoxicated and sentenced to definite term of imprisonment of one year based on his criminal history and probation violation. The defendant had a long criminal history beginning from 1979 where he was charged with assault in the second degree, grand larceny, and leaving the scene of an accident, he was sentenced to period of probation as he was a youthful offender. In 1983 he was convicted of the class “C” felony of attempted criminal sale of a controlled substance in the third degree and sentenced to a sentence of five years of probation to run concurrent with a six-month term of imprisonment. In 1984 he was arrested for driving while intoxicated on three separate occasions but was convicted of one count of driving while intoxicated DWI and one count of driving while impaired. He received a sentence of probation and a fine. The defendant appealed the sentenced imposed of one year imprisonment for driving while intoxicated.

Published on: May 12, 2014

People v. Blackman

by Stephen Bilkis

People v. Blackman

Court Discusses Section 160.50 of the CPL to Determine Whether the Defendant’s Record should be Sealed

The defendant requested to seal her record and to return her prints pursuant to section 160.50 of the Criminal Procedure Law. The defendant was charged with driving while intoxicated DWI and driving while intoxicated in violation of section 1192(3) of the Vehicle and Traffic Law. The defendant was also charged with disorderly conduct, a violation of Section 240.20 of the Penal Law which she pled guilty to with the imposition of a conditional discharge sentence. The defendant asserted that her fingerprints and photograph be returned when both were taken when she was charged for driving while intoxicated since she pled guilty to a non-printable offense of disorderly conduct. The defendant stated that she was entitled to the benefit of section 160.50 of the CPL as the criminal proceeding was terminated in her favor. The defendant relied on the cases of People v. Flores, 393 N.Y.S.2d 664, People v. Miller, 394 N.Y.S.2d 1006, and Dwyer v. Guido, 54 A.D.2d 956, which returned the accused fingerprints, photographs and sealed the records.

Published on: May 10, 2014

Subdivision 5 of CPL § 190.50

by Stephen Bilkis

A Queens Criminal Lawyer said that, this is a proceeding by petitioner pursuant to article 78 of the CPLR to prohibit the respondents, a Justice of the Supreme Court, Queens County, and the District Attorney of said county, from further proceeding against him under indictment No. 603-85, and to dismiss said indictment outright.

A Queens Robbery Lawyer said that, petitioner, at his arraignment, served written notice upon the District Attorney of his desire to testify before the Grand Jury. The matter was ultimately presented to the Grand Jury and an indictment was voted on February 14, 1985, charging the petitioner with grand larceny in the second degree, criminal possession of stolen property in the first degree, and unauthorized use of a vehicle in the third degree. Petitioner received no notice regarding the convening of said Grand Jury. Accordingly, he moved, within five days after his arraignment, to dismiss the indictment on the ground that he had been denied his right to appear and testify before the Grand Jury under subdivision 5 of section 190.50 of the Criminal Procedure Law.

A Queens Felony Lawyer said that, Criminal Term granted the application on condition, however, that petitioner appear before another Grand Jury and directed that in the event of his failure to appear, the indictment was to “remain in full force and effect”. Petitioner thereafter commenced the instant article 78 proceeding. On June 10, 1985, the date on which the District Attorney was to have resubmitted the matter to another Grand Jury, petitioner notified the District Attorney’s office that he had decided against testifying. As a result, the District Attorney did not re-present the charges and by the terms of the Justice’s order, indictment No. 603-85 remains in full force and effect.

Published on: May 10, 2014

Marijuana Recovered from the Window Sill

by Stephen Bilkis

A New York Marijuana Possession Lawyer said that, the defendant is charged with Criminal Possession of Marijuana in the Fifth Degree (P.L. § 221.10(1)). In an omnibus motion, defendant seeks: (1) dismissal of the charge on grounds of facial insufficiency; (2) suppression of all physical evidence allegedly obtained from defendant; (3) to preclude the prosecution from presenting identification and statement testimony at trial for which they failed to give timely notice; and (4) to preclude the prosecution’s use of defendant’s prior or subsequent criminal history, or uncharged criminal, vicious, or immoral conduct.

A New York Drug Possession Lawyer said that, the defendant also seeks discovery, submits a Demand to Produce and a Request for a Bill of Particulars, and seeks reservation of rights to make additional applications based on the People’s production and subsequent case development. The People respond to the defendant’s motion, provide their Voluntary Disclosure Form, and seek discovery from the defendant.

The issue in this case is whether defendant’s omnibus motion should be granted.

Published on: May 9, 2014

The informer related criminal activity

by Stephen Bilkis

The county police found evidence involving a man in a number of burglaries. As a result, the said man was indicted for the crime of burglary in the third degree and two counts of grand larceny in the third degree. The man also faced a charge of petit larceny.

After an unsuccessful attempt of the man to controvert the search warrant, he pleaded guilty to two counts of petit larceny, in full satisfaction of all the criminal charges in the indictment. He also pleaded guilty to the petit larceny charge.

Subsequently, the single issue presented for the court’s consideration is whether there was probable cause to support the issuance of the search warrant.