New York Criminal Lawyer Blog 24/7

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.”

Published on: November 16, 2012

Defendant Moves For Order Suppressing Tangible Evidence Related to Drug Possession Charges

by Stephen Bilkis

The defendant in this case has been charged with criminal possession of a controlled substance in the 7th degree. This violates Penal Law section 220.03. The defendant has also been charged with endangering the welfare of a child. The defendant has moved for an order to dismiss the information as facially insufficient and to suppress any tangible property that was seized from him and also have any statements that he has made suppressed as well. Alternatively, the defendant is seeking a Dunaway/Mapp/Huntley hearing.

Case Discussion: Criminal Possession of Controlled Substance

Published on: November 13, 2012

New York Court Rules that Defendant Has Satisfied Prior Judgment

by Stephen Bilkis

This case is being heard in the Family Court of New York in Kings County. The issue before the court is whether the help of the court is still required. The respondent mother has moved to dismiss the petitions. This motion is supported by the attorney for the children.

Case background

Published on: November 11, 2012

Judgment of the Supreme Court Convicting the Accused is Reversed

by Stephen Bilkis

Judgment of the Supreme Court convicting the accused, following a jury trial, of manslaughter and sentencing him to an indeterminate term of imprisonment of from six to eighteen years, is reversed on the law and the matter remanded for a new trial.

The accused was indicted for murder in the second degree, criminal possession of a weapon in the second degree and criminal use of a firearm in the second degree as the result of a fatal shooting. The deceased was a physician who had purchased real property located in Bronx County. The accused was the seller of the parcel of land in question, and, following the transaction, the deceased and the accused became good friends. However, the relationship between the two men deteriorated rapidly after the accused first agreed to sell the deceased man’s one-half of a building but subsequently refused to go through with the deal. The deceased man thereupon instituted a lawsuit to compel specific performance, and, when the parties were unable to settle their differences, the matter proceeded to trial and judgment, the outcome of which was that the accused was directed to sell the property to the deceased. The accused filed a notice of appeal and moved for a stay, which was granted on condition that he files a bond and perfect his appeal by a specified date. All additional settlement discussions were unsuccessful, and, finally, on the day before the bond was due, the dispute erupted into violence. The accused and the deceased became embroiled in a heated altercation during which the accused was apparently punched by the deceased and then threatened by him with further physical injury. In response, the accused removed a loaded gun from the desk in his office and followed the accused downstairs to ascertain whether he had left the premises in which the accused man’s printing business was located. The two men exchanged some more words, and the accused fired three shots at the deceased, one of which struck the latter, fracturing his spine resulting to spinal injury and perforating the spinal cord. All efforts to revive the deceased failed.

Published on: November 9, 2012

NY Court Determines if Parent is Guilty for Alleged Maltreatment of Child

by Stephen Bilkis

The determination as to whether a parent is brought to court for maltreatment of a child is made by the New York State Office of Children and Family Services. When a complaint of child abuse is brought to them, it is their job to investigate the compliant thoroughly and to bring an abuser to justice. However, the elements of child abuse and neglect leave room for a good deal of independent conceptualization. What one person considers abuse or neglect is not considered abuse or neglect by some others.

With the advent of more Middle Eastern cultures coming in to America, the buzz topic has been female circumcision. In America, it is considered child abuse to circumcise a female child; however, it is not considered child abuse to circumcise a male child. Social norms factor greatly into the consideration of what is child abuse and neglect. Many African cultures believe that a skinny female child is a sin and a humiliation to her family. The mothers have been known to force feed their girls so that they gain weight. In their culture, it is believed that if they are not fat, they will not be desirable as wives. Different cultures have different beliefs about the treatment of children. As these cultures become mainstream in the United States, court systems will become more involved in determining if these customs should be preserved as integral to their cultures, or outlawed as child abuse or neglect. The lines have become so blurry that occasionally, the investigators assigned to the ACS become overzealous or hypersensitive to the plight of children. There is no question that children are considered precious in the United States. The goal of the court system is to ensure that children are cared for and provided a home life that is enriching to them. However, this goal can sometimes become diluted by circumstances.

Published on: November 8, 2012

NY Court Determines if Mother is Guilty of Child Neglect

by Stephen Bilkis

On January 2, 2008, an eight year old girl became defiant with her mother. They lived in New York. The child became physically aggressive and threw objects in the room and then went to her room and slammed the door. Her mother followed her into her room and took one of the child’s belts down. She prepared to swat the child on the buttocks with the belt, but the child jerked around. The belt buckle came into contact with the child’s face. The contact caused a small scratch to the outside corner of the child’s eye.

When the child went to daycare, she told the school that her mother had struck her in the face with the belt buckle. The New York State Office of Children and Family Services investigated the occurrence. They determined that the mother had mistreated her daughter and used excessive corporal punishment. They charged the mother with child neglect under the law. The law that applies to this type of situation is Social Services Law §412[2][a][i] and Family Ct Act § 1012[f][i]. To this point, the ACS stated that the woman punished the child to the point where the punishment damaged or was in imminent danger of damaging the child’s physical, mental, or emotional state.

Published on: November 7, 2012

New York Court Finds Parents Guilty of Child Abuse

by Stephen Bilkis

Dealing with child abuse situations is difficult, especially when the officers of the court are parents themselves. Understanding why families can be torn apart by this type of violence is often impossible to comprehend. Police officers and prosecutors can become caught up in the emotion of the incident and fail to see evidence that is right in front of them. In other cases it can be just the opposite. The desire of the New York family court to take all steps possible to keep a family together can be counterproductive to a child who has been targeted for severe abuse in the family. Sometimes, services that are provided by the Administration for Children’s Services to rehabilitate abusive parents only applies a band aid to a gushing arterial injury.

That was the case of one family in 2004. The Administration for Children’s Services had already removed the children from the home once. They required the parents to attend parenting classes and other classes aimed at reuniting the family. Following the completion of these classes, the Administration for Children’s Services began returning the children to the home. The first to children to return to the home were ones that had been determined to have been derivatively abused under the statutes. These were the children who were not directly targeted for the primary abuse. They were the ones who witnessed or aided the parents in abusing the target child. The target child was the last one to return to the home. There were four children altogether at this time.