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Published on: July 24, 2012

New York Appellate Court Downgrades Defendant’s Sex Offender Risk Assessment Level

by Stephen Bilkis

In 1985, a man was convicted of one count of first degree rape, one count of second degree rape, four counts of first degree sodomy and four counts of second degree sodomy. The charges stemmed from claims brought by his two stepdaughters, who claimed that he forcibly raped and sodomized them on multiple occasions. Following his conviction, he was sentenced to a combined term of 25 to 50 years.

His criminal defense attorney filed a motion to set aside the verdict and this request was granted in 1991. The New York County Supreme Court was unable to determine why the conviction was overturned but the prosecutor in the case claimed they had arranged a plea agreement in which he would plead guilty to one count of first degree rape. In exchange, he received a sentence of 5 to 15 years.

Published on: July 22, 2012

New York Supreme Court Hears Defendant’s Argument that Due Process Rights Have Been Violated

by Stephen Bilkis

A man was charged with robbery in the second degree as an armed and violent Class C felony. He pled guilty to a Class D violent felony offense in exchange for a prison sentence of one to three years. At that time, the court agreed to consider an application for a less sentence based on mitigating circumstances. The court later found that there was insufficient mitigating evidence to support a shorter term than he had already received. He then challenged the court’s decision, alleging a violation of his due process rights. The court rejected his claim. At the sentencing hearing, his criminal defense attorney filed another application for a shorter sentence, which was also denied.

The case was then referred to the Supreme Court Appellate Division to address defendant’s constitutional claim. After reviewing New York Penal Law, the court determined that the prison term he received was appropriate and that the lower acted within the boundaries of its discretion in handing down the sentence. Accordingly, his plea arrangement and sentence were affirmed.

Published on: July 20, 2012

Counsel Withdraws From Appellate Case, Arguing No New Issues To Raise on Appeal

by Stephen Bilkis

A man plead guilty to numerous counts involving possession of child pornography. Specifically, his plea agreement included five counts of possessing a sexual performance by a child and four counts of promoting a sexual performance by a child. The Broome County Court sentenced him to six months in jail and a probationary term of ten years. He was also required to register as a sex offender upon his release.

After leaving jail, the felon failed to register as required by the Sex Offender Registration Act. He was then charged probation violation for failing to comply with this requirement. He plead guilty to the charge and as such his probation was revoked. He was then sentenced to a prison term of 1 1/3 to 4 years for each count of the original indictment, with the sentences ordered to run concurrently.

Published on: July 18, 2012

New York Supreme Court Decides Sex Offender Risk Assessment Level Under SORA

by Stephen Bilkis

He was 21 when he broke into a New Rochelle home on May 2, 1975. Assisted by three other men, Taylor entered the home of a suspected drug dealer with the intention of stealing money from the residents. Asleep in the home were the alleged drug dealer’s wife and three daughters, who were aged two, five and seven. The four men, who were armed and wearing masks, demanded money from the wife and threatened to kill the children when she stated she had none. After she repeated her claim that there was no money to steal, the men threatened to kidnap the youngest daughter and hold her for ransom.

One of the men took the girls’ mother into a bathroom just off the master bedroom and closed the door. While holding a gun to her head he told her he would kill her if she didn’t reveal where they hid their money. She was then tied, bound and locked in a closet. When she escaped, the men were gone, along with her two-year-old daughter. She called police, who arrived on the scene. An officer noticed a blue Datsun in the area, which was occupied by Taylor, another man and a little girl. Police attempted to stop the vehicle, which lead to a high-speed chase. Finally, the car collided with a light pole, allowing police to rescue the child and apprehend Mr. X and the other man.

Published on: July 17, 2012

Defendant Files Case in New York Supreme Court Regarding SORA Classification

by Stephen Bilkis

In August 2002, a man was accused of sexually molesting a 15-year-old girl in Florida. Five months later, he participated in an armed robbery of another Florida home. He pled guilty to both crimes and was sentenced to five years in prison. After being released, he moved to Green County, New York. The Board of Examiners of Sex Offenders completed a risk assessment which classified him as a Level One offender.

The prosecutor later argued that the Board failed to assign an additional 30 points based on the felon’s conviction for the home 2003 home invasion. County Court determined that the robbery, while not a prior crime, should still be considered as an aggravating factor which would justify upgrading his classification to a Level Two offender. He subsequently appealed this decision to the New York Supreme Court Appellate Division, Third Department.

Published on: July 16, 2012

New York Appellate Court Determines if Prior Confession is Admissible

by Stephen Bilkis

Two men were indicted on January 28, 1977, for murder in the second degree and attempted robbery in the first degree. A woman was also indicted for the same counts but pled guilty to attempted robbery and testified for the prosecution at trial. According to court documents, the three and another man attempted to rob another in his home. During the attempted robbery, the owner was shot in the head. He died a few days after the incident. Had his home been unoccupied at the time the four individuals broke into his home with the intent to steal, his life might have been spared and the defendants may only have been charged with burglary.

Three weeks after the robbery occurred, one of the robbers was arrested and given a Miranda warning. He then made a statement to police in writing, which he signed. A second written statement was later given to an assistant district attorney. In these two statements, he claimed that he and his partner had developed a plan to make money, which involved the robbery of the house. The two men met with another before going to the woman’s home to further discuss the robbery. They forced their way into the apartment. One pointed a gun at the owner but stated he had never intended to harm him. A struggle ensued and the gun went off, causing the injuries to the owner. Both theives then left the scene.

Published on: July 14, 2012

New York Appellate Court Determines Admissibility of Prior Testimony in Robbery Case

by Stephen Bilkis

On March 9, 2003, a robbery occurred at Maggie’s Restaurant, located at 2643 Jerome Avenue in Bronx County, New York. On March 11, the detective investigating the case got a telephone call from the New York County Parole Office. The Parole Office stated that David X was present. The detective then went to the office, arrested Mr. X and gave him his Miranda warning. The detective asked Mr. X if he knew why he was being arrested and then told him it was for the robbery at the restaurant. According to the detective, Mr. X then stated that he was at the scene and participated in the robbery but did not have a gun at the time.

The detective found a pawn shop ticket in Mr. X’s pocket, which he stated was for a necklace that had belonged to one of the restaurant’s customers. The detective and Mr. X went to the pawn shop and retrieved the chain.

Published on: July 13, 2012

Defendant Files Appeal Based on Error in Denying Motion to Vacate Judgment in Robbery Case

by Stephen Bilkis

Two separate robberies occurred in parking garages on the East Side of Manhattan in August of 1982. On August 17, A and two other individuals stole two cars after threatening the parking attendant with a gun. A few days later on August 20, 1982, B, who had participated in the first robbery, picked A up from his mother’s home. Another robbery occurred in a different parking garage and Colon and Tisdale were later seen showing off one of the four cars that were stolen to other people in the neighborhood. The parking attendant who worked at the second garage was found dead on the floor of the garage office. He had been killed with a shotgun and fingerprint evidence suggested that B but not A had been present in the office. Despite this evidence, Mr. A was convicted of second degree murder and first, second and third degree robbery. He was sentenced as a violent offender and received 15 years to life for the murder, 6 to 12 years each for the first and second degree robbery counts and 3 to 6 years for the third degree robbery count. The judge ordered the sentences to run concurrently with one another but consecutively with another sentence of 12 ½ to 25 years for an unrelated conviction.

Mr. A appealed his conviction on the grounds that the trial court committed an error in denying his motion to vacate the judgment based on insufficient evidence. The Supreme Court Appellate Division, first Department was charged with determining whether his appeal had any merit.

Published on: July 12, 2012

New York Appellate Court Determines Whether Sufficient Evidence Was Presented at Trial

by Stephen Bilkis

A was charged with eight counts involving different sex crimes. The charges were based on claims that he had sexually abused another child who rode the school bus with him on different occasions in 2005, 2006 and 2007. Mr. A was convicted of three counts of committing a criminal sexual act in the first degree and two counts of first degree sexual abuse. He was sentenced to 15 years in prison and subsequently appealed his case to the Supreme Court of New York Appellate Division, Third Department.

The appellate court was charged with determining whether the evidence presented at trial was sufficient to warrant a conviction. Mr. A’s criminal defense attorney argued that while his client admitted engaging in inappropriate sexual contact with a minor child, the evidence did not prove that he ever compelled the victim to participate through verbal or physical force. Under New York Penal Law, forcible compulsion must be considered from the victim’s perspective and weighed against their age, the size and strength of the person perpetrating the unlawful sex acts and their relationship to the victim.

Published on: July 11, 2012

New York Supreme Court Decides if Double Jeopardy is Present in Murder Case

by Stephen Bilkis

M was tried for intentional murder, felony murder, robbery in the first degree and criminal possession of a weapon in the second degree. The robbery charge was dismissed due to lack of evidence. The other counts were then presented to the jury along with an attempted robbery charge, which defense did not object to. A jury found Mr. M not guilt of intentional murder but could not reach a verdict on the other counts. A retrial was held and Mr. M was charged only with felony murder and weapon possession. Mr. M’s defense attorney moved to dismiss the indictment on the claim that double jeopardy had already been attached. This motion was denied and the indictment was amended to include a charge of felony murder with the underlying felony being robbery or attempted robbery. The indictment did not include separate counts for either robbery or attempted robbery. Mr. M was subsequently convicted of both felony murder and the weapons charge. His attorney appealed his conviction to the Supreme Court Appellate Division, Second Department.

The appellate court was charged with determining whether double jeopardy had in fact attached, which would have rendered the second trial for felony murder moot. The court held that the trial judge’s decision to drop the first degree robbery charge did effectively bar further prosecution for that count of the indictment. However, the court also stated that double jeopardy did not apply to the felony murder count since Mr. M was never charged separately with robbery or attempted robbery. Mr. M also challenged the addition of attempted robbery to the indictment as the underlying felony for the murder count. The court did not support this claim and accordingly, opted to uphold his original conviction on murder in the second degree and criminal possession of a weapon in the second degree.