New York Criminal Lawyer Blog 24/7

Published on: February 15, 2013

Defendant Appeals Criminal Conviction in NY Appellate Court Alleging Ineffective Counsel

by Stephen Bilkis

The defendant was charged in Queens County of kidnapping in the first, eight counts, and second degrees; rape in the first degree, two counts; sexual abuse in the first degree, two counts; and criminal possession of a weapon in the second degree. Thereafter, the defendant was convicted, after a jury trial, of kidnapping in the first degree, four counts; rape in the first degree, two counts; kidnapping in the second degree; sexual abuse in the first degree, two counts; and criminal possession of a weapon in the second degree. On 15 August 1996, the defendant was sentenced. The defendant appealed the judgment of convictions. According to the defendant, the Court erred by refusing to charge the jury as to the defense of duress and his sentence was excessive. The Appellate Division, Second Department modified the judgment by vacating the conviction of one count of sexual abuse, finding that no evidence pertaining to that count was adduced at trial. Other than that, the Appellate Division affirmed the judgment. The defendant then sought leave to appeal to the Court of Appeals. However, that application for leave was denied. The defendant then moved to vacate his judgment of conviction and argued that he was denied effective assistance of counsel, among other things, because his trial counsel failed to have the serological evidence tested for DNA after the defendant denied any involvement in the rape. On 18 June 2001, the defendant’s motion was denied, and his claims were found procedurally barred pursuant to CPL 440.10 based on the fact that the allegations were in the record, and could have been reviewed on defendant’s direct appeal. The defendant’s claims were found by the court bereft of merit. The defendant then sought leave to appeal the denial of his motion to vacate judgment, and sought a writ of error coram nobis. A sargued by the defendant, his appellate counsel was ineffective for failing to raise on appeal the claims he raised in his motion to vacate. The Appellate Division denied both applications, viz.: defendant’s application for leave to appeal and his application for a writ of error coram nobis.

The defendant, pro se, now moved for an order directing that forensic Deoxyribonucleic Acid (DNA) testing be performed on specific evidence; for an order vacating the judgment of conviction; and to have the defendant produced at any hearing.

Published on: February 13, 2013

Defendant Files NY Appeal Regarding Grand Jury Proceeding

by Stephen Bilkis

This is a case wherein defendant moved for an order to grant inspection of the Grand Jury minutes ad dismissing or reducing the relevant counts of the indictment as not supported by legally sufficient evidence.

The defendant likewise moved for an order of dismissal on the indictment on various grounds arising out of a defective grand jury proceeding.

Published on: February 12, 2013

Defendant Files Motion for Leave to Present Additional Arguments on Appeal

by Stephen Bilkis

The is a case where defendant filed a motion for leave of court to present additional arguments on appeal for a judgment of the Supreme Court rendered on December 20, 2001. Said judgment, subject matter of this petition, was rendered by decision and order of the court on February 23, 2004.

The Court has ruled to recall and vacate the order and decision issued by the Supreme Court and substituted the same based on the memorandum and papers filed in support of the motion and other documents filed in relation thereto.

Published on: February 10, 2013

Defendant Appeals Designation as Level 3 Sex Offender

by Stephen Bilkis

This is an appeal from the order of the District Court of Nassau County, First District, entered November 14, 2003, deemed from a supplemental order of the same court entered July 20, 2010. The order, following a hearing, designated defendant a level three sex offender pursuant to Correction Law article 6-C.

A Lawyer said that, defendant pleaded guilty to sex abuse in the second degree (Penal Law § 130.60 [2]) and endangering the welfare of a child (Penal Law § 260.10). At a hearing held pursuant to the Sex Offender Registration Act (SORA) Correction Law § 168-n, the People submitted clear and convincing evidence of defendant’s out-of-state felony conviction of a sex crime under Maryland Annotated Code, article 27, § 464B. The People also submitted an assessment instrument prepared by the Board of Examiners of Sex Offenders recommending that defendant be designated a level three sex offender based upon the automatic override factor of an out-of-state felony conviction. The District Court adopted the Board’s recommendation and designated defendant a level three sex offender.

Published on: February 8, 2013

New York Appellate Court Determines if Defendant is Entitled to Evidentiary Hearing Pursuant to Due Process Clause

by Stephen Bilkis

The defendant was charged with two counts of Sexual Abuse in the First Degree, a D violent felony, and Endangering the Welfare of a Child, an A misdemeanor. A Lawyer said that, pursuant to a plea bargain agreement, the defendant pled guilty, under count one to the lesser charge of Sexual Abuse in the Second Degree, an A misdemeanor, and under count three to Endangering the Welfare of a Child, an A misdemeanor, in satisfaction of the indictment.

A source said that, prior to sentence, the Court notified the defendant that based upon his conviction for Sexual Abuse in the Second Degree and in accordance with the public notification and disclosure provisions of the New York State Sex Offender Registration Act, commonly referred to as “Megan’s Law”, the Court intended at the time of sentence to certify the defendant as a sex offender as required by Correction Law § 168-d and to assign a risk assessment level of 3 to the defendant using override provision (iv) of the Risk Assessment Guidelines established by the Board of Examiners of Sex Offenders pursuant to Correction Law § 168-1(5). The defense counsel was given the opportunity to review the presentence report prepared by the Probation Department with an attached clinical assessment from Child Abuse Prevention Behavior Associates.

Published on: February 7, 2013

The defendant was arrested and subsequently arraigned

by Stephen Bilkis

The defendant was arrested and subsequently arraigned on a charge of assault in the third degree in violation of Penal Law § 120.00 (1). The People moved in line for a ruling allowing them to call an expert witness on domestic violence to testify on their direct case regarding the “battered woman syndrome” (hereinafter referred to as BWS). The complainant and the defendant dated periodically for a period of time encompassing the past 13 years. The instant charge stems from August 25, 2003, when the defendant is alleged to have picked up the complainant, thrown her over a couch, pushed her to the ground, and stomped on her groin, thereby causing her to allegedly suffer bruised ribs and a fractured coccyx. In support of their application, a Lawyer said that, the People detail the complainant’s allegations of physical and psychological abuse by the defendant over a prolonged period of time. Included are a litany of alleged violent acts directed at her by the defendant, from 1991 to 2003. The alleged violence included threatening to kill the complainant on numerous occasions, repeatedly beating her, urinating on her, various acts of forcible sex abuse, and constant berating of her. Although these acts occurred over a period of 13 years, except for brief sporadic periods of separateness, the complainant did not leave the defendant nor immediately seek protection from the police. All of the prior alleged violent acts were also the subject of the People’s Molineux application, which was separately decided.

A Nassau Sex Crime Lawyer said that, the charges contained in the criminal complaint before this court allegedly occurred on August 25, 2003. The complainant did not report the alleged crime to the police on August 25, 2003. On October 19, 2003, after other alleged incidents, the complainant reported this charge to the police along with four additional charges. Thereafter, the defendant was arrested for the above-listed crimes.

Published on: January 26, 2013

A defendant who pleads guilty to Rape in the Third Degree

by Stephen Bilkis

A defendant who pleads guilty to Rape in the Third Degree by way of an Alford-Serrano plea, notwithstanding his claims of innocence, is convicted of a felony. Accordingly, he is subject to the collateral consequences of that conviction to include being classified under the Sex Offender Registration Act and being subject to take an HIV test upon the request of the victim. The defendant was indicted in 1994 in a twenty-eight count indictment charging that he engaged in sexual relations with his 15 year old daughter, during a three month period. A 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 that 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 Lawyer said that, 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.

Published on: January 18, 2013

The defendant was charged with violating N.Y. Correction Law section 168-f(3)

by Stephen Bilkis

The defendant was charged with violating N.Y. Correction Law section 168-f(3) duty to register and to verify pursuant to his classification as a class three sex offender. Defendant moves to dismiss people’s charges pursuant to N.Y. Criminal Procedure Law sections 170.30(5) and 170.40 in the interest of justice. A Lawyer said that, the Board of Examiners recommended that the defendant should be classified as a class three sex offender due to the defendant’s prior felony conviction of manslaughter in the First Degree for the burglary and “attacking to death a 79-year old landlord” and the sexual assault committed against a minor, which occurred six months after his release from prison. Based upon the Board’s recommendation, a Nassau Sex Crime Lawyer said that, the Court declared the defendant a class three sex crime offender on August 21, 1996. From that date until the present time, the defendant has been required to appear before the Nassau County Police Department every 90 days to register as a class three sex offender.

A source said that, the defense counsel alleges that from May 13, 1996 until June 13, 2002 the defendant had no contact with the criminal justice system. The defendant acknowledged that he was provided written notice of his May 22, 2002 appointment with the Nassau County Police Department; however, he failed to appear. On June 6, 2002 the defendant reported to the Nassau County Police Department that he did not appear at his May 22, 2002 appointment because he “forgot.” On June 13, 2002, a warrant was issued for the defendant’s arrest for violating Correction Law 168-f(3). On June 13, 2002, the defendant signed a statement attesting to the fact that he knew he was required to verify his address but forgot to appear on May 22, 2002.

Published on: January 15, 2013

Defendant Appeals Weapon Possession Charges

by Stephen Bilkis

A Lawyer said that, this is an appeal by the defendant from a judgment of the County Court, Nassau County, rendered April 6, 1987, convicting him of criminal possession of a weapon in the third degree, escape in the second degree and criminal mischief in the fourth degree, upon a jury verdict of attempted murder in the first degree (three counts), criminal possession of a weapon in the second degree, and assault in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant’s omnibus motion which were to suppress physical evidence seized from his person and a statement made by him to law enforcement officials. A source said that, the defendant contends that the People failed to establish his guilt of three separate counts of attempted murder in the first degree.

The issue in this case is whether defendant is guilty of the crimes charged.

Published on: November 20, 2012

New York Supreme Court Determines Whether Constitutional Rights Have Been Violated

by Stephen Bilkis

Questions of law are heard by the Supreme Court to determine if a person’s rights have been violated. Many questions of law can arise in a court case starting at jury voir dire. Jury voir dire is the selection process to pick which jurors from a pool of persons who have been called for jury duty will be chosen to sit on any particular jury. Both the defense and the prosecution evaluate the potential jurors and try to choose the people that they believe will be the most favorable to their side of the argument. Either side may use a peremptory challenge to eliminate a juror. However, in the case of Batson v. Kentucky, the Supreme Court held that the “Equal Protection Clause of the Fourteenth Amendment forbids the use of peremptory challenges solely for discriminatory purposes, such as to purposely exclude persons of a particular race from serving on a jury.” Under Batson, there is a three-prong test to determine if the person making the motion has made a prima facie case showing that the other party has used its peremptory challenges for discriminatory purposes.

In one New York case, a defendant was observed by an undercover police officer selling drugs. The undercover officer attempted to purchase drugs from him but was denied. He arrested the subject and in the search incident to arrest the officer found that he was in possession of crack cocaine. The defendant was tried by a jury and convicted. He appealed his conviction because the court “improperly denied him his application pursuant to Batson.”