New York Criminal Lawyer Blog 24/7

Published on: June 30, 2012

Defendant Successfully Files for Writ of Habeas Corpus

by Stephen Bilkis

Shortly after 11 p.m. on Friday, January 6, 1994, two people forced their way into the South Third Street apartment of the Garcia family. The two individuals threatened Bernardo G as well as his wife and two young daughters. They then forced Mr. G to give them the keys to Diana’s Grocery, of which the as were owners. At some point during the robbery, another person entered the apartment. Additional individuals were involved in the robbery of the grocery store and the involved parties communicated via walkie-talkie throughout the event.

On March 4, 1994, neighborhood resident John V was arrested shortly after stopping at the Garcia’s store, apparently to buy a snack. He alone stood trial for the robbery. The other individuals who were arrested pled guilty to their charges. Mr. V was found guilty of six counts of robbery in the first degree, four counts of robbery in the second degree, five counts of burglary in the first degree and two counts of assault in the second degree. Had the Gs not been home when the crime occurred, the men would likely have been charged with burglary or another lesser crime, such as larceny.

Published on: June 29, 2012

Defendant Files Appeal in NY Appellate Court Based on Improper Jury Instructions

by Stephen Bilkis

On June 15, 1982, Joseph C was convicted of robbery in the first degree, robbery in the second degree and criminal possession of stolen property in the third degree in the Supreme Court of Richmond County, New York. Mr. C’s attorney appealed the conviction to the Supreme Court Appellate Division, Second Department.

Mr. C’s appeal centered on the trial judge’s alleged failure to charge the jury that the firearm used in the crime was not actually loaded and therefore, was not capable of causing serious bodily injury or death to the robbery victim. According to his defense lawyer, the judge should have used this information to charge the jury with an affirmative defense to robbery. Had the crime not involved any weapon at all, Mr. C may have only been charged with larceny or a similar crime involving property theft.

Published on: June 28, 2012

New York Appellate Court Decides if Defendant is Receiving Double Punishment for Robbery and Attempted Assault

by Stephen Bilkis

Daniel D was indicted along with five other individuals for the murder in the first degree of George Simon. All of the defendants were acquitted of the murder charge but Mr. D was ultimately convicted of assault with intent to kill. For this conviction, he received a sentence of 5 to 10 years. Following his conviction, evidence surfaced that lead to an indictment of Mr. Di Lapo on several counts of burglary in the first degree and attempted robbery in the first degree. On the advice of his defense attorney, Mr. D plead guilty to one count of attempted robbery in the first degree. The Erie County Court sentenced him to a term of 5 to 15 years, to be served consecutively with his previous sentence. Later, this sentence was reduced to 5 to 11 years but was still required to be served consecutively. Mr. D appealed the sentence to the Appellate Division, Fourth Department. The Appellate Division subsequently affirmed the trial court’s decision unanimously.

The case then proceeded to the New York State Court of Appeals. The Court was asked to consider whether the elements of the alleged Robbery and the elements of the first degree attempted assault similar enough to prevent the defendant from receiving a double punishment as prescribed under New York law.

Published on: June 27, 2012

New York Appellate Court Charged With Determining If There is Sufficient Evidence for Robbery Charge

by Stephen Bilkis

John G was charged with one count of robbery in the first degree stemming from an incident that occurred on May 22, 2008. In that incident, Mr. G entered the Commerce Bank branch on Hugenot Avenue in Richmond County, New York and handed a nearby teller a note. The note stated he had a gun and she was to turn over the contents of her till without speaking or drawing attention to herself. The teller filled a bag that Mr. G had provided with approximately $1,810. Mr. G then left the bank and was arrested for the crime several months later. The teller never actually saw a weapon in Mr. G’s possession and it was later established that the only evidence that he did have a gun was the note he had written.

The prosecutor presented this evidence to the grand jury, which resulted in an indictment for first degree robbery being entered against Mr. Gt. His attorney then filed an omnibus motion with the Supreme Court of Richmond County, requesting that the first degree robbery count be removed from the indictment in favor of a third degree robbery charge. The Supreme Court granted Mr. G’s motion and the charge was reduced accordingly.

Published on: June 25, 2012

New York Appellate Court Concludes that Robbery Charge is Contradictory to Murder Charge

by Stephen Bilkis

Timothy M was indicted on first degree robbery charges stemming from an incident that occurred on January 5, 1992. In that incident, Mr. M, along with a group of approximately 15 others, was walking along Jefferson Avenue in Rochester, New York. The group happened upon Charles G, an individual known in the neighborhood as a frequent shoplifter. At the time, Mr. G was holding a large plastic garbage bag, which apparently contained stolen clothing. Mr. M told the other members of his group that he was going to steal the bag from Mr. G. One of the boys in the group had a gun that he fired as Mr. M attempted to steal the bag from Mr. G. Additional shots were fired and Mr. G died of a gunshot wound to the neck.

Mr. M was charged with two counts of second degree murder and two counts of first degree robbery. At trial, Mr. M’s attorney asked the judge to charge the jury regarding attempted robbery in the first degree as a lesser included offense. No witnesses testified that Mr. M was in possession of the gun and he was subsequently convicted of attempted robbery and acquitted of the other counts.

Published on: June 23, 2012

Defendant Files for Appeal Arguing Trial Court Disallowed Expert Testimony

by Stephen Bilkis

Quentin A was convicted of the robbery of a 13-year-old girl. The victim in the case testified that he used a knife to commit the crime, which distinguished it from other crimes involving the theft of property, such as petty larceny, which does not involve the use of force or threats. Mr. A appealed his case to the Appellate Division of the New York State Supreme Court. His defense lawyer argued that Mr. A deserved a new trial since the trial court did not allow the defense to submit expert testimony concerning the validity of eyewitness identifications.

According to the victim, Farhana U., Mr. A approached her as she was walking down the stairs into the subway at Essex and Delancey Streets. Mr. A came within two feet of her and asked for some change. Farhana told Mr. A she did not have any change and continued down the stairs. Mr. A walked past her up the stairs, then came back down and stood in front of her. He proceeded to hold a knife to her neck and demand that she give him the necklace she was wearing. Farhana resisted but Mr. A grabbed the necklace and proceeded to run off up the stairs. Farhana reported the robbery to the token booth clerk.

Published on: June 22, 2012

New York Court Discusses Presence of Consent in Sex Case

by Stephen Bilkis

Frank G was indicted for two counts of third degree sodomy upon a victim identified as J.P; three counts of third degree sodomy upon a victim identified as C.V.; and one count of second degree sexual abuse against a victim identified as L.G. The third degree sodomy counts were classified as E felonies and the sexual abuse count as a Class A misdemeanor. The counts were all categorized as statutory in nature due to the ages of the victims, who were 16, 14 and 13, respectively.

Mr. G’s criminal defense attorney filed a motion with the Albany County Court to dismiss the indictment because of insufficient evidence. According to Section 130.16 of the New York Penal code, a person cannot be convicted of consensual sodomy, attempted consensual sodomy or a similar sex crime that includes lack of consent as an element if the failure to consent stems solely from the victim’s age. In cases of sexual abuse, molestation or other sex crimes involving an underage victim, the child’s testimony must be supported by additional evidence to prove that sexual contact occurred or was attempted. Essentially, the defense argued that the victim’s testimony should not be considered sufficient on its face value to render an indictment since they were all underage when the alleged sex crimes occurred.

Published on: June 21, 2012

NY Court Reviews Risk Assessment Level of Defendant Under SORA Guidelines

by Stephen Bilkis

Michael H was found guilty of six counts of first degree sodomy, one count of attempted first degree sodomy, two counts of second degree sodomy and one count of first degree sexual abuse. Following his conviction, the Board of Examiners of Sex Offenders recommended designating Mr. H as a risk level three sexually violent offender upon his release. Mr. H’s criminal defense lawyer requested a risk assessment hearing to determine whether he should be assigned to risk level two based on the evidence.

According to trial records, Mr. H was convicted on sex crimes charges for committing improper sexual acts with five boys, aged 11 to 15. Apparently, Mr. H had convinced the boys to run away from home and go to a shack in the woods near Pelham Bay, where the sexual offenses occurred. At the time the sexual acts were committed, Mr. H was 19. He received a sentence of 8 1/3 to 25 years with a release date of November 7, 2011.

Published on: June 19, 2012

New York Appellate Court Determines If Constitutional Violation Exists in Publishing Name of Victims

by Stephen Bilkis

James B, an established Broadway actor, was charged with the sexual abuse of a 15-year-old girl in 2001. His attorney, Ronald P. Fischetti, filed a petition on his behalf challenging an order from the Supreme Court which prohibited the defense from publishing the victim’s name in order to investigate her credibility.

A complaint was first filed against B on April 4, 2006. On October 30, 2006, he was indicted on charges of third degree sexual abuse and committing a criminal sexual act in the third degree. His arraignment hearing was scheduled for December 6, 2006. The day before the arraignment, the District Attorney’s office gave information about the case to the New York Post and the New York Daily News. The news coverage that followed painted B in a negative light and described the alleged sex crimes involved. Both newspaper articles included a telephone number and encouraged anyone with similar complaints about B to call. The day after the articles were published, the New York Post reported that another girl had come forward to claim that B had engaged in improper sexual conduct with her when she was 13.

Published on: June 18, 2012

New York Appellate Court Rules that State of Mind is Not Relevant, Rather the Act Itself in Sex Crime Case

by Stephen Bilkis

Edgar B was convicted of two counts of second degree sodomy for four instances of improper sexual contact with three young boys. Mr. B was sentenced to two consecutive terms of 3 ½ to 7 years. Each victim testified that he had allowed Mr. B to engage in oral sodomy in exchange for a trip to the movies or an amusement park.

Charges involving one of the victims, identified as Dennis M., were dismissed after the boy recanted. He claimed that he had falsely accused Mr. B after being intimidated by the police. In the case of the two other victims, Angel J. and Manny O., Mr. B was convicted of the sodomy charges.