New York Criminal Lawyer Blog

Published on: April 12, 2014

X was the only defendant to take the stand

by Stephen Bilkis

This is a proceeding wherein the defendants have been convicted of multiple counts of rape and sodomy in the first degree. The charges arose after a New Jersey woman alleged criminal defendants forced her into a car outside a Manhattan dance club, took her to a Brooklyn apartment and there raped and sodomized her. At trial, defendants sought to introduce evidence purportedly showing that the woman had previously engaged in group sex. They contend that the trial court improperly applied the State’s “rape shield law” under CPL 60.42 to deny their application, thereby depriving them of their Federal constitutional rights to present evidence and confront the witnesses against them. They also assign error to the trial court’s refusal to instruct the jury expressly that acquittal was required if defendants held a mistaken belief that the complainant had consented to sexual relations.

The Appellate Division affirmed the judgments.

The court affirms the Appellate Division’s order in each case.

Published on: April 12, 2014

There is no indication that the Legislature intended to bifurcate the hearing process

by Stephen Bilkis

In this Criminal case, the defendant was arrested in September 1978 and charged in one accusatory instrument, a felony complaint, with two crimes, i. e., Violation of Sections 265.02 (a felony) and 240.50 (a misdemeanor).

A Queens County Criminal attorney said that a preliminary hearing was held by this Court in November 1978. The People offered the testimony of an officer and a forensic report prepared by the New York City Police Department attesting to the operability of the weapon.

A Queens County Criminal lawyer said that the defendant was standing on 107th Avenue and New York Boulevard in Queens County at about 6:30 A.M. on September 16, 1978, when he flagged down a police patrol car. A distance away from the defendant were a group of five males. The defendant informed the police officers that he was an “undercover man” in the District Attorney’s office and that the group of males had just robbed him and taken his gun. At the time of this conversation, the defendant was holding a black leather holster in his hand. The police arrested the five males at the scene and recovered a gun on the sidewalk from the area in which they were standing. The defendant identified the gun as his; it was a twin barrelled Derringer with two live rounds in its chambers.

Published on: April 9, 2014

People v. Tolentino

by Stephen Bilkis

People v. Tolentino

Court Discusses Suppression of Evidence and Probable Cause

The criminal defendant requested that the finding from the search of his automobile be suppressed. The defendant was arrested after an informant told the police that the defendant and his accomplice would be at a train station with heroin. The defendant was under extensive surveillance and a search warrant was obtained to search him and his accomplice. The defendant and his accomplice arrived at the train station and were searched but no controlled substances were found on his person but his car keys were found. The defendant permitted the officers to search his car and ten ounces of heroin was found in the trunk. The Huntley hearing concluded that finding were to be suppressed as the search flowed directing from the questions and answers which was previously suppressed by an order. The People appealed the finding of the hearing.

Published on: April 8, 2014

The aforesaid charge is dismissed summarily

by Stephen Bilkis

In this case, two offenders moved to dismiss the misdemeanor charges of criminal possession of a weapon and criminal possession of marijuana on speedy trial grounds.

They were arraigned on the said complaints and after two days, the complainant allegedly obtained a copy of the ballistics report. The report states that the .32 caliber pistol seized from the offenders is operable. The report was deposited in the complainant’s case file, where it faded for many months.

Afterwards, in a written response to a discovery motion, the complainant invited the offenders to inspect the ballistics report in the file. It does not appear that the offenders ever availed themselves of the opportunity. The complainant then announced their readiness on the record. However, the ballistics report was not filed in the court.

Published on: April 8, 2014

New York Vehicle and Traffic Law 1192

by Stephen Bilkis

The matter at bar is a civil forfeiture proceeding wherein the complainant woman who is claiming authority also happens to be a Suffolk County Attorney seeking the forfeiture of a 1967 Chevrolet owned by the defendant man.

The defendant man was arrested on June 23, 2006 for driving while intoxicated (DWI). He submitted to a blood test after being transported to the Hospital and it was determined that his blood alcohol level was 19%. Prior thereto, on January 11, 1984, the defendant man was convicted of driving while intoxicated (DWAI) in violation of Vehicle and Traffic Law section 1192.2. The said law prohibits any person to operate a motor vehicle while such person has 0.08 alcohol level in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva. Based upon his arrest and prior conviction, his vehicle was seized pursuant to Article IV Chapter 270 of the Suffolk County Code. On October 26, 2006 he pled guilty to driving while intoxicated (DWI) and was sentenced to sixty days incarceration.

Suffolk County Code provides that any property which constitutes the proceeds of an offense, the substituted proceeds of an offense or an instrumentality of an offense shall be seized by any peace officer, acting pursuant to his or her special duties, or police officer may upon probable cause to believe that an offense, as defined in this article, has been committed, and may be forfeited as hereinafter provided.

Published on: April 5, 2014

District Attorney of Queens County

by Stephen Bilkis

A Queens Criminal Lawyer said that, the defendants, through their respective counsels, move for an order dismissing this indictment for lack of prosecution. These defendants, together with two other defendants, were indicted for the crimes of robbery in the first degree; grand larceny, first degree; grand larceny, second degree, three counts; assault, second degree; kidnapping and burglary, third degree by an indictment filed April 29, 1959. At that time these defendants were in the custody of the San Francisco Police Department upon charges pending against them by the State of California. During the month of April 1959 these defendants were indicted by a Federal Grand Jury in the Northern District of the State of California charged in a three count indictment with interstate transportation of stolen property, concealment of that stolen property and with conspiracy.

A Queens Grand Larceny Lawyer said that, on May 1, 1959 the New York City Police Department sent a telegraphic warrant to the San Francisco Police Department requesting that these defendants be held in $50,000 bail. Thereafter on May 14, 1959 the District Attorney of Queens County communicated with the San Francisco Police Department and agreed to reduction of the bail on these defendants to $10,000 each if the criminal defendants executed waivers of extradition as promised by their attorneys. On May 20, 1959 both these defendants executed extradition waivers whereby they waived the service of the warrant of the Governor of the State of California and further agreed to accompany a duly authorized agent of the State of New York to the City of New York. This waiver only applied to the jurisdiction of the State of California and was not a waiver as to the jurisdiction of the United States Government under the Federal indictment.

A Queens Robbery Lawyer said that these defendants pleaded guilty before the Federal Court and were sentenced on July 28, 1959 to serve extensive terms in the Federal Penitentiary at McNeil Island in the State of Washington. Thereafter a superseding indictment was filed in this court against these two defendants together with two others for the same crimes as set forth in indictment 494-59. On December 11, 1959, indictment was dismissed on motion of the District Attorney of Queens County because of said superseding indictment.

Published on: April 4, 2014

His test was essentially an aggregate weight analysis

by Stephen Bilkis

At the trial, the People’s chemist, whom the Court found to be both competent and commendably candid, acknowledged that he could not, to a reasonable degree of scientific certainty, rule out the presence or gauge the amount of non-marijuana. His test was essentially an aggregate weight analysis, from which he neither sought nor was able to determine what part of the mass was marijuana as defined, and what was not. He could and did state that the 9.3 pounds of mass were divided among twenty bags and that each bag contained marijuana. But he could not state the weight of the marijuana within each bag or within each of the samples he tested from each bag. He could not exclude the presence of ground mature stalks, stalk fibers, sterile seeds, or any of the other matter specifically listed under the statute as non-marijuana. Nor could he chemically rule out the presence of oregano, sage, or other “adulterants,” in any degree, large or small. In short, he could not give an expert opinion as to the weight of the marijuana as defined, on the ground that marijuana is not susceptible of quantification.

This, of course, is no reflection on the chemist or his procedures. The expert stated that the statute, as written, can be met, only if he were, in his words, to perform a separate test on each of the countless ground particles which comprise the mass. If so, such a procedure would be quite obviously untenable.

The defendant moves to dismiss the sale count, claiming that one cannot be guilty of selling more than a pound of marijuana because it has not here been (and purportedly cannot be) established that the mass in fact consisted of more than a pound of marijuana as defined. If the argument is correct, it should not result in dismissal, but, at most, reduction to those classes of sales which contemplate no specific weight level.

Published on: April 2, 2014

Hearing Officer Miller commenced the administrative hearing

by Stephen Bilkis

A New York Marijuana Possession Criminal Lawyer said that, petitioner in this CPLR Article 78 proceeding, moves by order to show cause to annul and vacate the October 14, 2009 determination by respondent New York City HOUSING AUTHORITY (NYCHA), which terminated her tenancy in the Red Hook West House, at Apartment 2A, 80 Bush Street, Brooklyn New York. The NYCHA Board approved the September 28, 2009 decision of NYCHA Hearing Officer which found petitioner ineligible for continued occupancy of her apartment. Petitioner claims that NYCHA is discriminating against her because she “self-medicates” with marijuana possession to alleviate her epilepsy disability and NYCHA failed to provide her with an accommodation for her disability.

A New York Drug Possession Criminal Lawyer said that, respondent NYCHA opposes the instant order to show cause and seeks dismissal of petitioner’s petition, alleging that: (1) NYCHA terminated petitioner’s tenancy after establishing that in the three years prior to her administrative hearing petitioner pled guilty five times to criminal possession of a controlled substance in the seventh degree; (2) petitioner has not established that she has a disability; and, (3) petitioner is not entitled to an accommodation for her ongoing illegal drug use. Further, NYCHA claims that its determination to terminate petitioner’s tenancy is: consistent with the law; not arbitrary, capricious or an abuse of discretion; supported by substantial evidence and, proportionate to petitioner’s offenses.

A New York Criminal Lawyer said that, petitioner and her family have been residents of Apartment 2A, 80 Bush Street, Brooklyn, New York for a number of years. The apartment is located in public housing owned and operated by respondent NYCHA. NYCHA charged Petitioner several times in the last decade with non-desirability and breach of her lease. Petitioner and respondent, on May 22, 2006, executed a stipulation of settlement of various charges against petitioner with respect to the February 8, 2006 specification of charges against petitioner. These charges alleged, among other things: that petitioner violated her previous stipulated tenancy probation, because her sons, unlawfully possessed or possessed controlled substances with intent to sell from petitioner’s apartment, on various dates; and, petitioner unlawfully possessed crack cocaine at her apartment on February 3, 2004. In her May 22, 2006 stipulation, petitioner agreed that: her sons are not authorized to reside in her apartment, at 80 Bush Street; her probation would continue until September 26, 2011; and, that she “understands that any violation of the Rules, Regulations, Policies or Procedures of the Authority shall constitute a violation of this Stipulation and will subject the Tenant to additional penalties, up to and including termination.” NYCHA approved the Stipulation on June 22, 2006. Subsequently, NYCHA charged petitioner with non-desirability, breach of its rules and regulations, and chronic rent delinquency, on April 27, 2009. Respondent, among other things, charged petitioner with: unlawful possession of marijuana with intent to sell and acting with others, including a third son, to do so on November 21, 2008; permitting illegal drug activity in her apartment; unlawfully possessing at her apartment controlled substances on October 6, 2006, December 6, 2006, February 20, 2009 and April 20, 2007; allowing unauthorized occupants to reside in her apartment; violating terms of her lease by failing to refrain from illegal activities at her apartment; and, failing to have individuals on the premises with petitioner’s consent refrain from illegal activities referred to in petitioner’s lease.

Published on: March 31, 2014

People served a response to the request

by Stephen Bilkis

The Defendant stands accused, by long form information, of criminal possession of a controlled substance on account of an incident. That charge is designated as count 1. She also stands accused by seven simplified traffic information, each specifying an appearance date of June 29, 2005 and each joined together with the long form information under this docket, of DWI, reckless driving, driving above the posted speed limit, failing to maintain her driving lane, failure to yield to an emergency vehicle, passing a red light, and driving without her headlights illuminated. These incidents are alleged to have occurred at the same time and place, and on the same date, as the alleged Penal Law violation. A D.W.I. supporting deposition and bill of particulars pertaining to the alleged violation of Vehicle and Traffic Law is annexed to the accusatory documents. The Defendant was arraigned on all counts.

The criminal court file does not bear the highlighted notation that, as a general rule, is made by the clerk when a defendant, either at arraignment or thereafter by mail, serves a demand for a supporting deposition. In the court file, however, is a request for a bill of particulars, behind which is stapled a demand for supporting depositions, behind which is stapled, in turn, the envelope, addressed to Clerk, District Court, in which both documents arrived at the court clerk’s office. It is apparent that the two documents, although sent in the same envelope, were stapled together after their arrival in the clerk’s office, but no cover letter notifying the clerk of the action requested accompanies either of these documents. Each bears the endorsement of the Defendant’s attorney of record, and each is noticed, first, to the District Attorney and second, to the Clerk, District Court. Each document is dated July 28, 2005, but only the first page of the requests for a bill of particulars bears the court clerk’s time-date stamp. Although not completely legible, the time-date stamp appears to read August 1, 2005, 3:05 p.m. The four-page request for a bill of particulars calls for production of records of analysis of any chemical test administered to the Defendant, specified information about the person who conducted any such test, specified information about any person who interpreted the test to determine the Defendant’s blood alcohol content, specified information about the chemicals used during the test, specified information about the machine used to conduct that test, schematic diagrams of any such machine, and other specified information about the conduct of the test. The demand for supporting depositions bears the summons numbers of the simplified traffic information other than that by which the Criminal Defendant is charged with violating Vehicle and Traffic Law. The court has not ordered that the complainant police officer serve and file supporting depositions. Moreover, the People did not timely respond to the Defendant’s request for a bill of particulars.

The Defendant moves for the relief noted above. In support, she annexes a copy of the affidavit attesting to service by mail of the demand for supporting depositions and the request for a bill of particulars on the District Attorney, and on the clerk of the court. Insofar as she seeks dismissal of counts 3 through 8, she points to the failure of the People to supply supporting depositions, and urges that as a result of the District Attorney’s failure to supply the supporting depositions, the six traffic tickets must be dismissed. Insofar as she seeks an order compelling compliance with the request for bill of particulars, the Criminal Defendant posits that she needs a response in order to prepare for trial, and points out that the People have not refused to comply.

Published on: March 30, 2014

.395 grams of cocaine beneath the front passenger seat

by Stephen Bilkis

After the criminal defendant was removed from his vehicle, the police began conducting an inventory search of the vehicle. The discovery of several 9-millimeter rounds in the trunk, however, transformed the search from inventory to investigatory, during which the police recovered a 9-millimeter semiautomatic pistol, what was later determined to be .395 grams of cocaine beneath the front passenger seat, and 41 rounds of 9-millimeter bullets contained in a partially loaded magazine and a box in the trunk. The gun recovered from the defendant’s vehicle matched the shell casings found in the parking lot near the nightclub.

The criminal defendant’s contention that the evidence was legally insufficient to support his conviction of murder in the second degree and criminal possession of a weapon in the second degree is unpreserved for appellate review. In any event, viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant’s guilt of those crimes beyond a reasonable doubt. A person is guilty of depraved indifference murder when, under circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.