New York Criminal Lawyer Blog

Published on: July 10, 2013

Alford-Serrano plea is effective

by Stephen Bilkis

The defendant father was indicted in 1994 in a twenty-eight count indictment charging that he engaged in sex relations with his 15 year old daughter, during a three month period. He entered into a negotiated Alford-Serrano plea to one count of rape in the third degree with the assistant district attorney, with the knowledge and consent of the victim’s mother. The court in view of the representations of the prosecutor, and the defense along with the victim’s mother, accepted the plea bargain based on the fact that the victim was of limited intelligence and would be unduly traumatized by testifying in court against her father. While the father maintained his innocence he claimed that a jury might convict him of rape in the first degree rather than the statutory rape charge to which he pled. Domestic violence at its worst.

The criminal defendant father argues that since he took an Alford-Serrano plea, whereby he maintained his innocence, yet acknowledged that the prosecutor may have been able to obtain a conviction, it should not be used against him in calculating his classification as a sex offender.

After the plea, the assistant district attorney moved pursuant to Criminal Procedure Law that the defendant submit to a human immunodeficiency virus (“HIV”) test. Attached to the motion was an application for HIV testing signed by the allege victim. The defendant father steadfastly refused to take the HIV test on the ground that he still maintains his innocence and no proof otherwise was ever presented to the court. He also argues that the disclosure of a positive test result if it occurred would harm his reputation in the community since the victim’s family has in the past proliferated defamatory written materials attacking him and his employer.

Published on: July 10, 2013

Mistrial is denied

by Stephen Bilkis

A Nassau Criminal Lawyer said that, this case is a criminal proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the Presiding Justice, the Clerk, and the Deputy Clerks of the Supreme Court, Appellate Division, Second Judicial Department, to accept for filing an application for leave to appeal from an order of the County Court, Nassau County, dated October 9, 2009, in an underlying criminal action, pending under Nassau County Indictment No. 74670/90, and to accept for filing an application for leave to appeal from an order of the Supreme Court, Queens County, dated September 23, 2009, in an underlying criminal action, pending under Queens County Indictment Nos. 6608/90 and 6609/ 90, applications by the petitioner for leave to appeal to this Court from those orders, and application by the petitioner for poor person relief. A Nassau Order of protection Lawyer said that, also a proceeding pursuant to CPLR article 78, inter alia, in the nature of a writ of prohibition to prohibit the retrial of the petitioner on Nassau County Indictment No. 3935/88, on the ground that a retrial of the subject indictment would subject him to double jeopardy.

Weapons were not found.

A Nassau Order of Protection Lawyer said that, in a decision and order on application dated April 2, 2010, a Justice of this Court denied the petitioner’s application pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from the order of the County Court, Nassau County, in an underlying criminal action, pending under Nassau County Indictment No. 74670/90. In a decision and order on application dated April 8, 2010, a Justice of this Court denied the petitioner’s application pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from the order of the Supreme Court, Queens County, in an underlying criminal action also pending under Queens County Indictment Nos. 6608/90 and 6609/90. Since this Court accepted for filing the petitioner’s applications for leave to appeal to this Court from those two orders, the proceeding to compel acceptance of those filings has been rendered academic and, therefore, and must be dismissed. Moreover, since applications for leave to appeal to this Court from those orders have already been made and determined, the petitioner’s current applications for the same relief also must be dismissed. Sex was not involved.

Published on: July 10, 2013

Decision is reversed on appeal

by Stephen Bilkis

Sometime in early February 1970, the police learned from a reliable informant that a certain person (the defendant) along with a friend of his were engaged in extensive heroin trafficking. The two criminal men were investigated and kept under surveillance. On 5 March 1970, a detective received information that defendant and his friend would be in possession of heroin at a service station in the Bronx. A warrant authorizing a search of both men was obtained. The friend was the first to arrive at the gas station. No heroin was found on his person. He is said to have consented to the search of his automobile which was on the apron of the gas station where five ounces of heroin were found. A few minutes later, the defendant arrived at the scene. He was searched and once again no contraband was found, but automobile keys were recovered. Defendant was asked if he had a car and if it might be searched. He identified his car and agreed to the search. Ten ounces of heroin were found in the trunk of the car.

Defendant was then arrested and for the first time advised of his rights. Following a Huntley hearing, the Trial Court concluded that the search of defendant’s car flowed directly from the questions and answers suppressed by the order of 15 January 1971. On 26 January 1971, the Supreme Court of Bronx County issued an order suppressing the evidence obtained from defendant’s automobile. Assault was not involved although other criminal activities were suspected.

On appeal, the Appellate Court unanimously reversed, on the law and on the facts, and the defendant’s motion to suppress the heroin seized from his automobile was denied.

Published on: July 10, 2013

People vs Greer is brought up

by Stephen Bilkis

On 16 December 1983, the County Court of Nassau County rendered judgment convicting a certain defendant of criminal possession of a weapon in the third degree, after a nonjury trial. The defendant appealed from that judgment. The appeal brought up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress a statement made by him to the police. The judgment was affirmed by the Appellate Court.

First, the defendant’s claim that the shotgun recovered by the police at the scene of the criminal act should have been suppressed because the People failed to document the operability of the weapon was not preserved for appellate review. Nonetheless, the Appellate Court still ruled upon its admissibility. It held that the shotgun was admissible in evidence since reasonable assurance of identity and unchanged condition of that weapon existed from the trial testimony of the police officer who identified it as the exact weapon he recovered from the scene of the crime. What’s more, a firearms examiner testified that when he examined the weapon it was operable. Any deficiencies in the chain of custody did not in any way relate to the admissibility of the gun but to the weight that the jury accorded that evidence. This was the same ruling that the court held in the case of People v. Capers.

Second, the hearing court correctly refused to suppress the defendant’s unsolicited, voluntary and spontaneous statement uttered while he was awaiting transfer to a cell. This was also the ruling in the celebrated case of People v. Ferro and the case of People v. Lanahan. Well established is the rule that questioning on the subject of pedigree information is not likely to evoke inculpatory responses and therefore it need not be preceded by Miranda warnings; as held in the cases of People v. Johnson and People v. Rodriguez. Here, aside from seeking pedigree information, the defendant was not subjected to any other type of express questioning or its functional equivalent. Thus, the hearing court’s determination that the defendant’s statement was spontaneously made and therefore admissible should not be disturbed as held in the case of People v. Harrell, in the case of People v. Boyd, and in the case of People v. Tyler. Robbery was not charged.

Published on: July 9, 2013

HIV test is allowed

by Stephen Bilkis

The defendant was indicted in 1994 in a twenty-eight count criminal indictment charging that he engaged in sexual relations with his 15 year old daughter, during a three month period. A Nassau Criminal Lawyer said that, the defendant entered into a negotiated Alford-Serrano plea to one count of rape in the third degree with the assistant district attorney, with the knowledge and consent of the victim’s mother. The court in view of the representations of the prosecutor, and the defense along with the victim’s mother, accepted the plea bargain based on the fact that the victim was of limited intelligence who would be unduly traumatized by testifying in court against her father. While the defendant maintained his innocence he claimed that a jury might convict him of rape in the first degree rather than the statutory rape charge to which he pled.

A Sex Crime Lawyer said that, the defendant argues that since he took an Alford-Serrano plea, whereby he maintained his innocence, yet acknowledged that the prosecutor may have been able to obtain a conviction, it should not be used against him in calculating his classification as a “sex offender” pursuant to the SORA.

A Lawyer said that, after the plea, the assistant district attorney moved pursuant to Criminal Procedure Law section 390.15 that the defendant submit to a human immunodeficiency virus (“HIV”) test. Attached to the People’s motion was an application for HIV testing signed by the alleged victim. The defendant steadfastly refused to take the HIV test on the ground that the defendant still maintains his innocence and no proof otherwise was ever presented to this court. He also argues that the disclosure of a “positive” test result if it occurred would harm his reputation in the community since the victim’s family has in the past proliferated defamatory written materials attacking him and his employer. A defendant who takes an Alford-Serrano plea “does not accept responsibility for the offense.” Quite the contrary, the defendant here vehemently protested his guilt and maintains his innocence. However, the defendant cannot have it both ways; he cannot maintain innocence and thereby circumvent the collateral consequences of his plea of guilty or the nature of his plea. No robbery or gun possession was involved.

Published on: July 9, 2013

Marriage licenses are studied

by Stephen Bilkis

A Nassau Sex Crime Lawyer said that, in this case, plaintiffs, members of five same-sex couples living in New York City, move for summary judgment declaring that, under the New York State Constitution, they are entitled to treatment equal to that of opposite-sex couples with regard to the issuance of marriage licenses and access to civil marriage. They contend that, insofar as New York State’s Domestic Relations Law denies marriage licenses and access to civil marriage to same-sex couples, it violates the Due Process and Equal Protection Clauses of the New York State Constitution. In addition to declaratory relief, plaintiffs seek an injunction requiring defendant to grant each of the couples a marriage license.

A Criminal Lawyer said that, defendant, who is sued in his official capacity as City Clerk of the City of New York, cross-moves for summary judgment dismissing the complaint. Defendant is the administrator of the New York City Marriage License Bureau and has responsibility for the issuance of marriage licenses and the solemnization of civil marriages in New York City.

A Nassau Criminal Lawyer said that, the partners in each couple have been devoted to one another for periods ranging from 3 to 22 years and represent the rich diversity of New York. Several of the couples are raising children conceived during the relationship or adopted into their homes. The individual plaintiffs come from an array of racial, ethnic, and religious backgrounds and include health care professionals, a computer specialist, a textile stylist, a waiter, city planners, and a director of an emergency food assistance program. Each couple wishes to enter into a civil marriage, but was denied a marriage license by defendant clerk. Plaintiffs allege that they have suffered serious hardship because of their exclusion from civil marriage. Plaintiffs claim that without this State’s recognition of same-sex marriage, they are denied the protections, benefits, and mutual responsibilities automatically afforded to married couples by New York state law. Grand larceny was not an issue.

Published on: July 9, 2013

Grand Jury Testimony is challenged

by Stephen Bilkis

On 16 December 1983, the County Court of Nassau County rendered judgment convicting a certain defendant of criminal possession of a weapon in the third degree, after a nonjury trial. The defendant appealed from that judgment. The appeal brought up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress a statement made by him to the police. The judgment was affirmed by the Appellate Court. DWI was not the impetus.

First, the defendant’s claim that the shotgun recovered by the police at the scene of the crime should have been suppressed because the People failed to document the operability of the weapon was not preserved for appellate review. Nonetheless, the Appellate Court still ruled upon its admissibility. It held that the shotgun was admissible in evidence since reasonable assurance of identity and unchanged condition of that weapon existed from the trial testimony of the police officer who identified it as the exact weapon he recovered from the scene of the crime. What’s more, a firearms examiner testified that when he examined the weapon it was operable. Any deficiencies in the chain of custody did not in any way relate to the admissibility of the gun but to the weight that the jury accorded that evidence. This was the same ruling that the court held in the case of People v. Capers. Robbery was not involved.

Second, the hearing court correctly refused to suppress the defendant’s unsolicited, voluntary and spontaneous statement uttered while he was awaiting transfer to a cell. This was also the ruling in the celebrated case of People v. Ferro and the case of People v. Lanahan. Well established is the rule that questioning on the subject of pedigree information is not likely to evoke inculpatory responses and therefore it need not be preceded by Miranda warnings; as held in the cases of People v. Johnson and People v. Rodriguez. Here, aside from seeking pedigree information, the defendant was not subjected to any other type of express questioning or its functional equivalent. Thus, the hearing court’s determination that the defendant’s statement was spontaneously made and therefore admissible should not be disturbed as held in the case of People v. Harrell, in the case of People v. Boyd, and in the case of People v. Tyler.

Published on: July 9, 2013

Omnibus motion is questioned

by Stephen Bilkis

A Kings Criminal Lawyer said that, this is an appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered September 25, 1990, convicting him of criminal possession of a controlled substance in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

A Lawyer said that, on October 14, 1989 at approximately 2:30 A.M., the victim was killed during a robbery on the 10th floor of an apartment building in Brooklyn. Later that day, the investigating detective, received a phone call from a known person, who stated that she had information regarding the victim’s murder. The person, who lived on the ninth floor of that building, told the said detective and another detective, to whom she had previously provided information in another case leading to the arrest of three perpetrators for robbery in the third degree, that at approximately 2:30 A.M. she had heard three gunshots.

She further stated that she then saw the defendant, whom she had known for 12 years; emerge from the stairwell from the tenth floor to the ninth floor, while wrapping a long-sleeved, light-colored shirt around a .25 caliber silver handgun. She stated that she then saw the defendant enter an apartment, also on the ninth floor. A Kings Cocaine Possession Lawyer said that, based on this information, the police, referring to the caller as an unidentified informant, obtained a warrant to search the defendant’s apartment. The search produced 322 vials of crack cocaine and a black leather bag containing a chunk of crack cocaine. The combined weight of the crack cocaine from these sources was over two ounces.

Published on: July 8, 2013

Megan’s Law is invoked

by Stephen Bilkis

A Nassau Sex Crime Lawyer said that, this is an appeal by the defendant from a judgment of the County Court, Nassau County, rendered April 1, 1996, convicting him of attempted rape in the first degree and sex abuse in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

The issue in this case is whether defendant is entitled to the suppression of his testimony.

Viewing the evidence in the light most favorable to the prosecution, the court finds that it was legally sufficient to establish the defendant’s criminal guilt of attempted rape in the first degree beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence. Viewing the evidence in the light most favorable to the petitioner, we find that it was legally sufficient to establish the appellant’s guilt beyond a reasonable doubt. The complainant’s hearing testimony was generally logical and consistent and sufficed to establish the appellant’s commission of acts which constituted the elements of the crime of sex abuse in the second degree (see, Penal Law § 130.60[2]. With respect to the appellant’s challenge to the credibility of the complainant’s testimony, we note that the resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the trier of fact, which saw and heard the witnesses. “Since this case was tried before a court without a jury, the greatest respect must be accorded the determination of the hearing court in assessing the credibility of [the witnesses] and resolving disputed questions of fact.

Published on: July 8, 2013

Drunk driving will not be tolerated

by Stephen Bilkis

Defendant was charged with criminal felony drunk driving. Defendant then moved to vacate his 2003 misdemeanor conviction of Operating a Motor Vehicle under the Influence of Alcohol which was entered via a plea of guilty.

According to the defendant, in an affidavit, he was not aware when he pled guilty in 2003 that he could be prosecuted for a felony if he were arrested for another DWI offense within ten years of his conviction; he accused the attorney who represented him of being ineffective because he never told him that a possible future DWI prosecution could be a felony; he never would have pled guilty if his attorney had so advised him; and argued that, under a landmark case which was decided in 2010, he is entitled to have his plea vacated.

According to the defendant’s attorney who represented him in the 2003 misdemeanor conviction, in an affidavit which the People provided, defendant’s allegations ring false, and he does advise all his clients that pleading guilty to a DWI charge, or any other charge, may subject them to more serious charges and/or sentences if they are arrested and prosecuted in the future.