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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.

Published on: November 6, 2012

NY Court Asked to Determine Necessity for Release of Confidential Documents

by Stephen Bilkis

The Kings County Court on July 22, 1958, was called upon to evaluate two separate cases that involved requests for specific information from protected patient records in a hospital. The court was asked to determine if the cases warranted the release of the medical records, or if the cases were not eligible to request the records because the records were protected by the doctor/patient privilege. In order to determine the necessity for the release of these documents, the court had to look at the specifics involved in each case.

The first case involved a man who had brutally beaten another man in a fight. The fight occurred in Kings County and left the injured man in a condition so serious that he had to be hospitalized. The hospitalization lasted for several weeks. During this time, the man was exposed to a bacteria in the hospital that caused him to suffer from infection. The infection turned into sepsis. The man ultimately died from the sepsis from the bacteria that he was exposed to in the hospital. The man’s assailant was charged with manslaughter for causing the death of his victim. His defense team challenged the indictment based on the fact that the injuries that the man sustained were not the proximate cause of the man’s death. His death was caused by bacteria that he was exposed to while he was hospitalized. The defense contends that they should be allowed access to the victims personal medical records so that they can prove their case at trial.

Published on: November 4, 2012

New York Court Discusses Waiver of Doctor Patient Privledge

by Stephen Bilkis

In 1958, a man was involved in a vicious fight with another man. It ended with the assailant pummeling the second man to the point where he was hospitalized. Some days following his admittance into the hospital, the man victim died. The assailant was charged with homicide for the death of the victim. However, the assailant’s defense team posed the issue that the assailant had not actually caused the death of the victim. They contended that the victim had died of natural causes as the result of medical malpractice at the hospital. Their contention being that the assailant could not be charged with any crime more serious than assault because the assault did not directly lead to the death of the victim.

The courts found that this was a compelling argument. Oddly, it was not the first time that an argument of this nature had been presented to the courts in a case of a physical assault. The courts looked back at case law in an attempt to determine how to assess the validity of the claim that was presented in this case. They discovered a case of a woman named Lemon who had poisoned her husband. He was hospitalized because of the poison that she had given him in an attempt to kill him when he died of complications several weeks later. Her defense was that the poison had not killed her husband, he had died as a result of medical malpractice at the hospital and that it was entirely beyond her control. Her contention being that she could not be charged with killing him if the doctors were the ones who actually caused his death. The courts in that case found that the man had died as a direct result of her actions in poisoning him. They determined that if she had not poisoned him, he would not have been in the hospital. If he had not been in the hospital, the doctor’s would not have treated him incorrectly. If the doctors had not treated him incorrectly, he would not have died. Therefore, the courts in that case determined that the woman had been the direct cause of the actions that transpired that culminated in the death of her husband. This created a framework for the justices in the current case to evaluate the necessary elements that would indicate that the crime was or was not a direct cause of the person’s death.

Published on: November 3, 2012

The Administration for Child Services Seeks to Punish Mother for Marijuana Use

by Stephen Bilkis

The use of marijuana has become more mainstream over the years as the children of the 1960’s have grown up and had children of their own. The easy availability of the drug and relatively few side effects have made it a popular drug of choice even though it is illegal. The question that the New York state courts are called upon to answer is if there is just cause to punish parents who are occasional users of marijuana like they would any other illegal drug. The New York administration for child services maintains that it should. In 2012, they filed a petition to remove four children from their natural parents as derivatively abused children following the birth of the fourth child. The mother and newborn infant had tested positive for marijuana in the hospital the day that the baby was born. The Administration for child services determined that the child must suffer a birth injury as a result of the drug use.

The Administration for child services does not produce any evidence that the child or other children were abused in any way. The only evidence presented as a requirement to remove the children was that the mother and infant tested positive on a toxicology screening. The mother filed a request to have a summary judgment issued by the court on her behalf.

Published on: November 2, 2012

White Collar Crime and Identity Theft Are a Huge Problem

by Stephen Bilkis

White collar crime and identity theft are such a huge problem in the United States that most people have become accustomed to taking basic precautions to protect their identities. However, often even the best precautions are not enough. Human error can play a role in the equation as well. Everyone needs to be diligent about checking their credit rating on a regular basis. The only way for a person to know what is on their credit reports is to obtain a copy of their credit report from each credit bureau every year. Sometimes, errors that are made on the credit report can be caught and corrected early enough to protect your credit score. Credit scores affect every aspect of a person’s life. One can even be fired or not hired at all based on the information that is on your credit report. So when an employee of one of the credit bureaus or a company that reports to the credit bureaus makes a mistake, then the repercussions can be long ranging.

That is what happened to a woman named Rachel, who lived in New York. She found out that there was a mistake on her credit report when her student loan was cancelled. She contacted the loan company and they told her that they had cancelled her loan because she was under a lien from AT&T Wireless Services, Inc. Rachel was confused, she had never had an account with AT&T nor had she ever applied for one. She was very confused. The lien was associated with her address, it even showed her social security number, date of birth, and phone number, but it did not have her name. The name on the lien was Raqul.

Published on: November 1, 2012

Defendant Appeals Denial of Huntly Hearing

by Stephen Bilkis

In 1987, a man was arrested at his place of business for raping his 15-year-old step sister on several different occasions. He was also charged with the rape of a 12-year-old neighbor when she was at the house where he lived. That incident was supposed to have occurred on April 11, 1986. He was taken into custody where he stated that he wanted to talk to an attorney. The police detectives stopped talking to him and even refused to talk to him until he obtained an attorney. They provided him with a telephone and a telephone book. He called more than ten attorneys attempting to find one that would represent him to no avail. He was ultimately assigned a public defender to handle his case.

While being transferred to a holding cell after his arraignment, the subject escaped from custody and had to be re-arrested and the charge of escape was added to his offenses. He was convicted on all charges and later filed an appeal. He stated that when he requested an attorney but could not find one, the officers should have taken him downstairs to the public defender’s office. The majority of the justices found that contention to be without merit. There was nothing at that point in time that would have enabled the police officers to know if the defendant was negligent and if he was, if he would qualify for a public defender at a later time.

Published on: October 29, 2012

New York Supreme Court Denies Summary Judgment in Felony Drug Case

by Stephen Bilkis

As a general rule, recovery for damages can be warranted when the negligent act is the proximate cause of the injury complained of. An exception to this principle is when there exists an intervening act which is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the respondent’s conduct thus considered as a superseding causation which can relieve the respondent from any liability.

The claimant appellant in this case has a long history of drug abuse and a lengthy criminal history, consisting primarily of drug-related offenses. On November 14, 1987, the appellant was arrested with her boyfriend on charges of assault, burglary, and robbery. While the claimant failed to attend the arraignment and trial, her boyfriend and codefendant alone was arraigned and sentenced with indeterminate years of imprisonment. Although the claimant did not participate in the trial and was not tried in absentia, a part clerk mistakenly recorded on the court file jacket that she had been found guilty of the identical charge and sentenced on the same date as her boyfriend. Thus, the purported 1989 assault conviction became part her criminal record.