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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.

Published on: October 21, 2012

Court Hears Child Abuse Case Involving Twins

by Stephen Bilkis

In 1992, two twin babies were born to a couple in Grenada. The mother moved to New York shortly after the babies were born. The girl and boy lived with their maternal aunt for the first five years of their lives and had liberal visitation with their father in Grenada. When they were five years old, they moved to New York to live with their mother and her new husband. They continued to have phone contact with their father in Grenada.

Their mother and her new husband had three other children together as the children grew up. When the twins were thirteen years old, the girl twin shared a room with her half-sister and her brother shared a room with his half-brothers. One night toward the end of the year, the girl’s step-father came in to the bedroom that she shared with her half-sister. He got into the bed with her and began to fondle her in a sexual manner. He fondled her breasts and attempted to have sexual intercourse with her. After the encounter, he told her that it was a secret. He did not know that his daughter who shared the room with the girl twin, had witnessed the encounter. The following day, he gave the girl twin money to keep their secret. However, soon after the first encounter, a second encounter happened. In that encounter, the step-father grabbed the girl twin in the kitchen by her bottom and again attempted to have sexual intercourse with her.

Published on: October 20, 2012

Court Discusses Heart Breaking Child Abuse Case

by Stephen Bilkis

On June 9, 2009, a little girl was taken into custody in New York by the Administration for Child Services. The child who was only four years old had only been returned to her natural parents for a few months. When she was only ten months old, her parents were charged with abusing her. At that time, she had several broken ribs, broken arm and numerous contusions and bruises that were in differing degrees of recovery. She had one burn to the back of her neck that was so severe that the skin was lifting off of it. At that time, she and her three other siblings were removed from the home. Neither parent could give a reasonable explanation for the injuries that the little baby girl had suffered. She and her siblings lived apart from their parents for three years while the Administration for Child Services worked to reunite the family.

In February of 2009, the little girl who was then four years old, was returned to her parents along with two of her siblings. By this time, her mother had given birth to two more children. Within five months of being returned to the home, the mother showed up at a local medical center with the child. She stated that the child had burned her elbow by touching an electrical outlet when she got out of the shower. The nurse practitioner who saw the child did not believe that this account of how the child was injured made any sense at all. She determined that there was no reasonable way that a child could sustain such a severe burn on her elbow from touching an electrical outlet with her hand after exiting the shower. Further, she noticed that the child had bruises, cuts, and scratches all over her body. These included a fresh bite mark on her heel. The burn itself on her elbow was a deep tissue second degree burn. This type of burn would have been very painful and it is doubtful that the child would have suffered this type of injury without crying in pain.

Published on: October 13, 2012

Defendant Appeals Weapons Possessions Charge, Arguing Lack of Evidence

by Stephen Bilkis

On July 29, 1974, the Criminal Court of the City of New York, New York County heard a sex crime case. The defendant was charged with the sex crime of rape and sodomy and possession of a dangerous weapon. The Grand Jury did not indict the defendant for the rape and sodomy charges on the ground that there was no corroboration of the complainant’s testimony as to the intercourse. He was charged only on possessing a dangerous weapon on March 18, 1974. The defendant now argues to have the dangerous weapons charge dismissed because the only proof of unlawful intent would be the complainant’s testimony that she was raped. If there is no rape charge, then he claims that he cannot be convicted of the weapons charge.

In the area of sex crimes, the law of corroboration has changed over the years. The courts did not initially require corroboration of the victim’s testimony when a defendant was charged with attempted rape, assault with intent to commit rape, and other related offences because the Penal Law required corroboration only for the actual crime of rape. Because other related crimes did not require corroboration, a defendant could be convicted of related crimes on uncorroborated testimony of the victim that a consummated rape occurred.

Published on: October 12, 2012

Sentence in Sex Crime Stands

by Stephen Bilkis

On December 9, 2010, the Supreme Court, Appellate Division, Third Department of New York heard the case of the People of the State of New York v. Richard P. King in a sex crime case. This sex crime involved a victim who was 11 years old who went swimming at a park with two men. The defendant drank some beer and gave the boy cigars before touching his genitals. He was convicted of sexual abuse in the first and second degrees, forcible touching, and endangering the welfare of a child. The defendant claims that there is not sufficient evidence for all of the crimes for which he was charged.

The defendant says that he did not force the victim of the sex crime to submit to any sexual contact. He says that any touching was playful and accidental and that it did not result from a desire for sexual gratification. However, the defendant did not make a motion to challenge the legal sufficiency of the evidence introduced at trial, so this issue has not been preserved for appellate review. The victim testified that the defendant used force to try to remove the victim’s shorts while they were swimming in a pond. He also said that the defendant tapped his genitals several times while they were wrestling.