Articles Posted in Uncategorized

Published on:

A New York Criminal Lawyer said defendant was indicted for multiple counts of handgun possession and a single count of possession of weapons with intent to sell, the defendant, waived a jury and the case was tried by the court. Decision was reserved pending submission of briefs. This is the decision and its reasoning. The case could have been tried on an agreed statement of facts; the only issue for the court to decide and upon which my decision turns is the defendant’s state of mind during the time he purchased and stored the handguns.

A Kings Estate Lawyer said that, on April 15, 1985, pursuant to a search warrant, officers of the New York City Police Department searched the defendant’s room in a YMCA and recovered 14 handguns and a quantity of ammunition. The defendant had been employed as a cab driver and hoped to open a sporting goods store; the weapons had been purchased as stock for the yet to be opened store. The police learned of his cache through his procurement of the necessary federal licenses to make the initial wholesale purchases.

A New York Possession of a Weapon Lawyer said that on March 25, 1985, a federal inspector visited his room at the “Y” to conduct an administrative inspection of the premises listed on the defendant’s federal firearm’s license; two citations resulted. Defendant contested the citations in the form of a “Notice of disagreement” wherein he argued that since he was not presently conducting a retail business in his YMCA room, he was not in violation of the particular regulations; he served the notice upon both the federal agency and the Police License Bureau. The visit of April 15 was the official response.

Published on:

A New York Criminal Lawyer said records reflect that the instant case is an appeal from three judgments of the Criminal Court. Each judgment convicted the offender involved, upon his plea of guilty, of petit larceny. On appeal, the court ordered that the judgments of conviction are reversed, on the law, the guilty pleas entered are vacated, and the matters are remitted to the Criminal Court for further proceedings on each of the accusatory instruments.

The People charged the alleged offender with petit larceny and criminal possession of a controlled substance in the seventh degree. He pleaded guilty to criminal possession of a controlled substance in the seventh degree in satisfaction of the accusatory instrument, and was permitted to participate in an outpatient drug treatment program in lieu of incarceration, with the proviso that if he was rearrested or otherwise failed to complete the program, he would be sentenced to a year’s incarceration. Some time later, based on a new incident, the People charged him in with petit larceny and criminal possession of stolen property in the fifth degree. He appeared in Criminal Court and pleaded guilty to petit larceny, whereupon he was restored to the outpatient treatment program, again as an alternative to a year’s incarceration, to run concurrently with the prior disposition. On a later date, he was arrested again and charged in a single accusatory instrument with petit larceny, criminal possession of stolen property in the fifth degree, and false personation. He appeared in Criminal Court and, although his prior guilty pleas had not been vacated, pleaded guilty to three counts of petit larceny, in satisfaction of the three accusatory instruments, and was sentenced to three concurrent terms of six months’ incarceration. He has served his sentences.

On appeal, he contends that his state statutory and federal constitutional protections against double jeopardy were violated when, without his prior guilty pleas having been vacated, he pleaded guilty a second time to offenses charged in the accusatory instruments in satisfaction of these accusatory instruments, and to a third charge of petit larceny in satisfaction of the accusatory instrument, as part of a comprehensive plea and sentencing disposition.

Published on:

A New York Criminal Lawyer said on April 4, 2009, the police responded to a call for service at a family home in Nassau County. Upon their arrival, they discovered that the residents of the home, a man and his girlfriend had been engaged in a domestic violence situation. As a result of domestic abuse, the woman was complaining of abdominal pain. She was far along in pregnancy at the time of the altercation. She stated that during the fight, she had been pushed or struck and that the blow had caused her to fall to the floor. She had not been allowed to obtain prenatal care and her complaints were concerning to the officers. An ambulance was called to the scene and the woman was transported to Nassau University Medical Center to receive treatment.

A New York Criminal Lawyer said that upon her arrival at the emergency room, doctors were concerned about the woman’s condition but only took brief examinations of her and promptly dismissed her from the hospital. On May 13, 2009, she returned to the emergency room complaining that she was having contractions. She was admitted into the hospital and doctors administered drugs to attempt to delay the delivery of the child. Since, the woman’s membranes had ruptured, doctors administered steroids to attempt to speed up the maturation of the baby’s lungs. The baby was subsequently born on May 13, 2009. At some point during his delivery, he was deprived of oxygen and blood through a compression of his umbilical cord. As a result, he was delivered with a brain injury that will result in his having to be cared for professionally the rest of his life.

A Nassau Criminal Lawyer said that because the hospital in which the child was born is owned and operated by the County, the hospital itself is considered a municipal entity. Because the hospital falls under this category, the woman only had 90 days to file a medical malpractice suit and personal injury. However, she was not aware of this. Six months after the child was born, the woman filed a motion to the court system to allow her to file a late service of personal injury and medical malpractice against the hospital. She claims that the hospital was aware in April that she was having difficulties with her pregnancy. They discharged her and failed to provide her or her child with the necessary prenatal care that could have made the difference in the health of her unborn child. She further contends that when she returned to the hospital to deliver her child, the doctors treatment of her was not within the standard of recognized medical practices that would have ensured that her child would be born healthy. She contends that it was the negligence and medical malpractice that the doctors acted with that caused her child to become brain damaged. The woman begged the court to accept her late filing based on the fact that English is her second language and the stress and time consumption that was involved in learning to care for her severely handicapped newborn infant had made it impossible for her to file her case within 90 days of his birth. In fact, he was in the hospital in another county for three weeks following his delivery and she had been consumed with his care.

A Queens Criminal Lawyer said the court reviewed the woman’s case and found that it was understandable that the woman had been consumed with the care of her newborn child to the exemption of every other consideration in her life. The fact that English was her second language further handicapped her from knowing how to take the necessary steps to file the case. The court granted her request for a late filing.
Continue reading

Published on:

Thus, in one case, which was factually quite similar to this case, the officer saw “a heavy object slide against the material in the right pocket” of defendant’s long outer coat. The officer tapped the pocket and “on feeling a hard object, reached into the pocket and removed a .22 calibre six-inch revolver with six rounds of live ammunition.” Suppression was directed because defendant “had done nothing wrong” before the officer reached into defendant’s pocket and because the officer could not tell “what the heavy object appeared to be by looking at the pocket”. Nothing in “defendant’s standing behind the pimp, in his nervousness or his slouched stature, or the fact that he had his hands in his coat pockets and removed them very slowly when requested to do so, or that a heavy object slid against the material of defendant’s pocket can be said to be reasonably referable to or indicative of the presence of a revolver.”

The officer here initially testified that all he wanted was a reasonable answer to his query about the bulky and weighty object in defendant’s pocket, and defendant then would have been free to go “on his way without my ever touching his pocket.” He later added that to satisfy his own curiosity he probably still would have touched the pocket if defendant had not shown him its contents. Such a touch would have been an unwarranted intrusion. The fact that defendant’s “‘pocket was hanging’, ‘like something heavy was in it’ ” was held insufficient as a basis for a frisk or search for a revolver in. On the facts here, it is plain there was no lawful predicate for the search.

With no inkling that criminal activity was afoot, there was no articulable reason for the police even to have questioned this defendant about the contents of his pockets. Accordingly, defendant’s response of “nothing” was equivalent to his right not to respond at all. Nothing in defendant’s response “made permissible any greater level of intrusion”. It certainly did not warrant a pat-down of defendant’s pocket. Whatever “fear for their safety” the police may have felt as an immediate predicate for their subsequent search for a gun was solely a result of an unwarranted intrusion in the first place.

Published on:

This is a case involving a Hispanic criminal defendant who was stopped and taken into custody by police officers for DWI. The defendant evaded a toll booth in a “cash only” lane without paying the required toll. The defendant was brought to the police department and was shown a video in the Spanish language explaining the process of taking breath tests. Having understood the same, the defendant complied and allowed the police officers to take his breath test. However, defendant asserted that he was not offered the opportunity to perform the standard coordination test.

During the trial, the defendant argued that his constitutional rights were violated when the police officers took his breath test but did not allow him to take the standard coordination test for the reason that he, allegedly, do not understand English. Defendant filed a motion to dismiss and several other motions which include a motion to suppress the videotape of the administration of the breath test and to set aside the verdict ad dismiss the charges on the ground that defendant’s federal constitutional rights were violated. The People filed an opposition to the said motions.

The Court ruled to deny the motion of the defendant to suppress evidence specifically the videotape of the breath test. Said motion, the court said, must be instituted before the trial begins. In this instant case, the defendant knew, before the commencement of the trial, that his breath test was taken even with language barriers but he failed to file a motion to the effect of suppression of evidence. Thus, the motion was untimely made.

However, defendant asserted during the trial that the officer’s failure to give him the coordination tests violated due process and equal protection rights.

As to the first issue, the Court finds that the action of the police officers in not offering the defendant to take the standard coordination tests was due solely to the officer’s perception that the defendant does not understand English. Said action, on the part of the police officers, was not based upon ethic classification, but on the ability to understand English. Further, it was clear that the defendant never claimed that the officers had the intention of discriminating Hispanics.

During the trial, the police officer who conducted the breath test admitted that he was not able to make the standard coordination test on the defendant considering the language barrier between them. The People, on the other hand, asserted that the New York City Police Department has to fire interpreters fluent in many different languages in order to offer coordination tests to non-English speaking defendants. Additionally, the people argued that the resources needed in order to effectuate the same will be substantial.

The defendant driver further alleged that the failure of the State Police Department to explain to him, in a language that he can understand, the nature of taking the coordination test violated his right to due process. It is true that the determination by the police that a person has been driving under the influence of alcohol or drugs can result to an arrest and deprivation of liberty, the investigation of suspected intoxicated driving by the police, in the field or at the intoxicated driver testing facility is not a judicial or quasi-judicial or even and administrative proceeding.

The Court ruled that there was no violation of due process in this instant case. Accordingly, the court ruled that the proposition of violation of due process applies in this case. Thus, the court denied the defendant’s motion to suppress evidence and the set aside the verdict of guilty.
Continue reading

Published on:

The convictions in this criminal case come from a storefront operation that was conducted by undercover agents that work for the State Police and the Attorney General’s office. The operation was set up as a way to buy stolen property and guns. The principal operator of the store was an investigator for the Organized Crime Unit of the Attorney General’s office.

During the operation, the investigator met with a man and asked if he knew of any handguns that he could purchase. Thereafter, the investigator met with the man and the defendant several times and was unsuccessful in purchasing a handgun for $400 from someone that was only known as “the kid.”

The defendant remained in the car when the investigator scheduled a meeting with the other gentleman to meet “the kid,” but was present at the actual meeting. Five days after the failed attempt, the defendant called the investigator and arranged another meeting and asked for $400 to make the purchase. The purchase was again not made and the money was returned by the defendant to the investigator.

After several similar attempts, the other gentleman obtained $400 from the investigator and told him he would call him after he bought the gun. Instead of calling he appeared at the store without a shirt and told the detective that he would find the gun wrapped in a t-shirt behind a piece of cardboard at the back of the store.

The detective followed the instructions and found an unloaded .38 caliber handgun and returned to the store with the gun. No drugs like cocaine were found. The defendant asked for $20 more for all of the efforts that she had made in arranging the sale of the gun. After she was given the $20, the defendant asked if he was interested in buying any more guns that evening. The detective declined stating he didn’t have any more money, but told the defendant and the other individual to let him know if they had additional guns in the future.

Before they left the store, the individual asked the detective to return the t-shirt that the gun was wrapped in because it was his.

The defendant was arrested and sentenced to concurrent prison terms of three and a half years to seven years for criminal possession of a weapon in the third degree and one and a third years to four years on the conviction for criminal sale of a firearm in the third degree. The defendant is appealing these convictions.

Court Decision
The defendant claims that she was trapped and that the Supreme Court made an error in refusing to charge the jury with respect to the affirmative defense of entrapment. However, in order to support this claim the defendant has to show that the public officer actively induced or encouraged her to commit the crime.

The court finds the claim to be without merit and the judgment is affirmed.
Continue reading

Published on:

The defendant is appealing an order that was made in the County Court of Chemung County. The defendant was convicted for criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree.

Case Background
While on duty in a marked police car, the officer saw a light skinned male wearing a white sweatshirt and a light colored hat lean out of the front passenger side window of a minivan and fire five or six shots from a semiautomatic hand gun at a Jeep that was in front of the minivan.

The officer reported the incident and followed the minivan. After a short distance, the minivan pulled over and a man jumped out of the passenger side door and fled by foot across a parking lot. The van left and the officer pursued the man who was on foot.

The officer lost the suspect for a short while, but then saw him running across a parking lot in an easterly direction toward a building. The building was then surrounded by officers and the defendant was found hiding in the bushes on the side of the building.

The officer immediately identified the suspect as the one who has fired the shots out of the minivan. The defendant was arrested and indicted on one count of criminal possession of a weapon in the second degree and two counts of criminal possession of a weapon in the third degree. A jury trial was held and the defendant was found guilty on all counts and sentenced to an aggregate prison term of 15 years with five years of post-release supervision.

Case Discussion
The defendant is appealing his conviction and wants bail reduction. He contends that the first count of the indictment that charged him with criminal possession of a weapon in the second degree should be dismissed as jurisdictionally defective because the charge did not allege facts that constituted the crime.

The defendant also argues that the second count of the indictment that charged him with criminal possession of a weapon in the third degree should have been dismissed as the subdivision had been repealed before the date of the indictment.

Court Decision
In regard to the first count of the indictment, the court disagrees with the defendant that it should have been dismissed. There were alleged facts in the indictment to support the charges that were made in the first count.

In regard to the second count of the indictment, the court finds merit in the defendant’s argument. The subdivision was repealed before he was indicted and for that reason the conviction on this count should be reversed.

The judgment against the defendant will be modified on the law to reverse the convicted defendant of criminal possession of a weapon in the third degree under the second count of the indictment. The second count is dismissed and the imposed sentence is vacated. The rest of the charges and sentences are affirmed.
Continue reading

Published on:

The defendant is a New York State Assemblyman and a chairman of the Executive Committee of the Kings County Democratic Party (KCDC). As an Assemblyman he routinely traveled from Brooklyn to Albany and back on New York State Assembly business, and as chairman of the KCDC, he was provided with a car and a credit card by which the KCDC paid all of his car-related expenses, including gas, oil and routine maintenance. Thus, the defendant submitted vouchers by which he sought and received a mileage allowance for the miles he had driven to and from Albany.

The defendant was later indicted by the grand jury of Kings County and charged with one count of grand larceny in the third degree (Penal Law § 155.35) and 76 counts of offering a false instrument for filing in the first degree (Penal Law § 175.35).

According to the prosecution, by receiving the mileage allowances sought in the vouchers, the defendant stole money from the State of New York by falsely claiming to have incurred the expenses which the allowances were meant to reimburse, and that when he certified on the vouchers that he incurred those expenses and was due a balance that included the mileage allowances, the certification on each voucher constituted a false statement.

The grand larceny count alleged that between 27 May 1999 and 29 November 2002, pursuant to a common scheme and plan, the defendant stole more than $3,000 from the State of New York by seeking and obtaining reimbursement for travel expenses that the defendant claimed to have incurred in Kings County and other counties by means of false pretenses in written instruments that the defendant offered for filing. The 76 false filing counts concern those written instruments, 76 travel vouchers (formally called NYS Assembly Member Per Diem Expenses Reimbursement Vouchers), which the counts alleged the defendant offered for filing with the intent to defraud the State, knowing that each contained a false statement and false information concerning travel expenses that the defendant purported to incur in Kings and other counties.

The defendant then moved, in an omnibus motion, for an inspection of the grand jury minutes and dismissal or reduction of the charges in the indictment.

According to the defendant, the evidence before the grand jury was legally insufficient and that the grand jury proceedings were defective; that the indictment itself is defective and that there are jurisdictional and legal impediments to his conviction for the crimes charged.
The defendant then also moved to dismiss the indictment in the interests of justice, and for an order directing the People to provide him with a bill of particulars pursuant to CPL 200.95, and for discovery and inspection under CPL 240.40.

The defendant’s motion for the court to inspect the grand jury minutes was granted; the court has inspected and reviewed the grand jury minutes. The defendant’s motion for disclosure of the grand jury minutes to him has previously been granted to the extent that, with minor redactions, the testimony of two witnesses has been provided to him. The motion to disclose the remainder of the grand jury minutes was denied since that disclosure is unnecessary for the resolution of the defendant’s motions.

On the issue of Sufficiency of the Grand Jury Evidence:

The evidence presented to the grand jury was sufficient to support the charges contained in the indictment, and the defendant’s motion to dismiss the indictment, or, in the alternative, to reduce the charges on this ground was denied.

Legally sufficient evidence means competent evidence which, if accepted as true, would establish every element of the crime charged and the defendant’s commission of it. In determining whether grand jury evidence is legally sufficient, the court must determine whether the evidence, viewed in the light most favorable to the People, if unexplained and uncontradicted, would be sufficient to warrant conviction by a trial jury. Even when assessing the sufficiency of the evidence in a case in which it is entirely circumstantial, the court’s inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes. The fact that innocent inferences could possibly be drawn is irrelevant, as long as the grand jury could rationally draw the inference of guilt.

First, indeed, the grand jury could find that by submitting the vouchers, the defendant knowingly, and with intent to defraud, sought and received payment for mileage allowances for driving expenses that he did not actually incur, and thus stole money from the State of New York. The grand larceny count properly aggregates the amount of money the defendant obtained from the vouchers submitted between 27 May 1999 and 29 November 2002, on the theory, specifically alleged in the indictment, that the larceny occurred pursuant to a common scheme and plan. Such aggregation is permissible even though the successive takings extended over a long period of time.

Second, an indictment need not specify that a defendant committed a larceny in any particular manner unless the theory of prosecution is that the larceny was from a person or was committed by extortion. In particular, when the theory of the prosecution is that the larceny was committed by false pretenses, the indictment need not so specify.

Third, it is unnecessary for a complainant to lodge a complaint or appear before the grand jury in order to sustain a larceny charge. Appellate courts have frequently upheld a defendant’s conviction for robbery, that is, for forcible stealing, even though the complainant did not testify against the defendant, whether because the complainant sustained severe injury in the commission of the robbery; had been killed during the robbery; was otherwise unavailable to testify; or simply failed to testify without explanation. Grafting such a requirement on a larceny prosecution in which the alleged victim is the State of New York rather than an individual would be particularly inappropriate, since a government entity can only complain through a representative individual, who does not have a personal stake in the loss alleged.

Fourth, from the evidence that the car the defendant drove to and from Albany was leased for him by the KCDC, that he paid the expenses associated with driving the car with the KCDC credit card, and that he approved the payment of the credit card account bills that included those expenses, the grand jury could infer that, when he certified on the vouchers that he had incurred the expenses for which he was seeking reimbursement and that the amount he sought was actually due and owing, he knew the certification was false and he was seeking reimbursement under false pretenses.

Fifth, the crime of offering a false instrument for filing in the first degree is committed by a person who offers to a public office or public servant a written instrument for filing, knowing that the instrument contains a false statement or false information, with intent to defraud the State or another governmental entity. Here, each of the counts with which the defendant is charged refers to a particular voucher the defendant filed seeking reimbursement for travel expenses, including payment of the mileage allowance for travel to and from Albany. Clearly, the grand jury could find that when the defendant certified that he incurred the expenses for which he sought payment through each voucher, and was due an amount that included the mileage payments sought in the voucher, the defendant knew that he had not actually incurred the expenses for which he sought the mileage allowances, and that the amount each voucher sought was not actually the amount due and owing.

Sixth, it was for the grand jury to determine what it meant to “incur” an expense, and when payment was “due and owing,” as those terms were used in the certifications the defendant signed. When those words are considered in the context of the vouchers’ purpose, reimbursing Assembly Members for their actual traveling expenses, as provided in the New York Constitution, or for their actual and necessary transportation expenses, as provided in Legislative Law, and in the context of the evidence before the grand jury concerning what the defendant knew about how the cars he drove and the expenses of operating them were paid for, the grand jury could subject the words to a reasonable and definite interpretation, and find that the defendant’s certifications were literally and knowingly false.

On the issue of Propriety of the Grand Jury Proceedings, Expert Testimony:

A grand jury proceeding is defective when its integrity has been impaired and prejudice to the defendant may result. Dismissal of an indictment is an exceptional remedy warranted only where a defect in the grand jury proceedings created a possibility of prejudice. Although the statutory test does not require that a defendant actually suffer prejudice in order for a court to find that the proceedings were impaired, the test to determine impairment is, nonetheless, very precise and very high. An indictment will not be dismissed because of every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake. Dismissal is appropriate only where there has been prosecutorial wrongdoing, fraudulent conduct or errors that potentially prejudice the ultimate decision reached by the grand jury.
First, the defendant’s generalized objections to the method and manner of the grand jury proceedings, and to the instructions given to the grand jury, are without merit. In particular, the minutes of the proceedings reveal that a quorum of grand jurors was present when testimony was taken and at the time the Assistant District Attorney instructed the grand jury on the law, and that it was instructed that only those grand jurors who had heard all of the evidence could participate in voting on the matter. The legal instructions given to the grand jury were not defective within the meaning of CPL 210.35.

Second, the defendant challenges the expert testimonies offered in evidence against him. As a rule, in any case, because a grand jury has ordinarily fulfilled its function when it has issued an indictment upon evidence that is legally sufficient to establish that the accused committed a crime, a prosecutor is not required to instruct the grand jury with the same degree of precision that is required when a petit jury is instructed on the law. Thus, a prosecutor’s instructions to the grand jury are sufficient if the District Attorney provides the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime. It is only when the prosecutor’s instructions were so incomplete or misleading that they substantially undermine this essential function, that it may fairly be said that the integrity of that body has been impaired. In some cases, there may be conflicting evidence on an important question of fact upon which an expert offered an opinion. In such a case, instructing the grand jury concerning its freedom to accept or reject the opinion of an expert witness may be important to insure that the grand jury serves its function to determine independently whether the People have met their burden of proof. Here, there was no such conflict in the evidence for the grand jury to resolve. The omission of an instruction concerning the weight, if any, to be accorded an expert’s testimony was not of such magnitude as to prejudice the defendant’s interests, to the extent that the integrity of the Grand Jury was impaired thereby. It is highly unlikely that giving the grand jury an instruction that they could reject the expert testimony they heard would have changed the grand jury’s determinations.

Third, while the defendant correctly observed that the prosecutor announced that he was admitting documents into evidence before laying a sufficient foundation for doing so, he did thereafter ask questions which established their admissibility as business records, and did so before posing any questions regarding their substance. Proceeding in this manner, while perhaps technically incorrect, neither impaired the integrity of the proceedings nor created any likelihood of prejudice to the defendant.

On the issue of Defective Allegations in the Indictment:

Allegations in an indictment that track the language of the statute defining the offense charged are legally sufficient. Specific reference to the name and section number of a statute alleged to have been violated constitutes jurisdictionally sufficient allegations of all the elements of a crime.

On the issue of Geographical Jurisdiction:

A defendant has the right at common law and under the State Constitution to be tried in the county where the crime was committed unless the Legislature has provided otherwise. Because jurisdiction is not an element of a crime, the People must only establish in the grand jury by a preponderance of the evidence that the county in which the crime is being prosecuted has jurisdiction over the matter. The People must establish that either the crime was committed in the county in which the crime is being prosecuted, or that jurisdiction lies under one of the statutory exceptions.

Here, while there was no evidence presented in the grand jury concerning where the defendant completed the reimbursement vouchers, the grand jury did hear that the vouchers were submitted in Albany and that the defendant received payment on them there. Regardless, there was substantial evidence before the grand jury of conduct in Kings County.

On the issue of Separation of Powers
It is hard to imagine how submitting a voucher for reimbursement of travel expenses could ever be considered an integral part of the deliberative and communicative processes of legislators considering proposed legislation or other matters which the constitution places within the jurisdiction of either House. A strained argument might be made that a Member’s presence in Albany is essential to those deliberative and communicative processes, and thus that a prosecution which challenges a Member’s reimbursement for expenses incurred in traveling there violates the Speech or Debate Clause. But such an argument goes too far, since there is nothing legislative about submitting a travel voucher, and it cannot be construed as speech or debate that the clause is meant to protect. Similarly, the independence of individual legislators is in no way diminished by prosecuting a Member of the Assembly for allegedly seeking and obtaining reimbursement for travel expenses he did not actually incur. As the Court of Appeals has observed, no matter how far the immunity of the Speech or Debate Clause may extend under the State Constitution, it cannot be said that it was intended to provide a sanctuary for legislators who would defraud the State.

On the issue of Dismissal in the Interest of Justice:

A court may dismiss an otherwise valid indictment in the interest of justice when such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment would constitute or result in injustice. In rendering its determination, the court must engage in a sensitive balancing of the interests of the individual and the People, and review the facts of the case and evaluate them in light of the criteria set forth in the law. While the court is obligated to set forth its findings, the statute does not compel catechistic on-the-record discussion of items to indicate that in fact all applicable items have been considered. A court should find that some compelling factor, consideration or circumstance exists and that the indictment should be dismissed, however, only in the most exceptional circumstances.

Here, the dismissal of the indictment in the interest of justice is not appropriate. There was compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon the indictment would constitute or result in injustice. Thus, the defendant’s motion to dismiss on this ground was denied.

On the issue of Discovery and Bill of Particulars:

Under the rules, prior to trial, the People are to inform the defendant and the trial court what, if any, uncharged criminal, vicious or immoral conduct they will seek to introduce into evidence for a determination of its admissibility. A Sandoval and/or Ventimiglia hearing will be conducted immediately prior to trial. The People are constantly reminded of their continuing obligation to disclose to the defendant any exculpatory evidence in their possession pursuant to the case of Brady v. Maryland which was decided by the court in 1963, and its progeny, and that they are obligated to provide it to the defendant, if it exists, in a timely manner.

Here, the People have adequately responded to the defendant’s demands in their answer and, at the request of the court, at oral argument of the motion, and if, there is still some discovery to which the defendant is entitled to and which the People have failed to provide, the defendant may renew the motion.
Continue reading

Published on:

This is an appeal from the order of the District Court of Nassau County, First District, entered November 14, 2003, deemed from a supplemental order of the same court entered July 20, 2010. The order, following a hearing, designated defendant a level three sex offender pursuant to Correction Law article 6-C.

A Lawyer said that, defendant pleaded guilty to sex abuse in the second degree (Penal Law § 130.60 [2]) and endangering the welfare of a child (Penal Law § 260.10). At a hearing held pursuant to the Sex Offender Registration Act (SORA) Correction Law § 168-n, the People submitted clear and convincing evidence of defendant’s out-of-state felony conviction of a sex crime under Maryland Annotated Code, article 27, § 464B. The People also submitted an assessment instrument prepared by the Board of Examiners of Sex Offenders recommending that defendant be designated a level three sex offender based upon the automatic override factor of an out-of-state felony conviction. The District Court adopted the Board’s recommendation and designated defendant a level three sex offender.

The issue in this case is whether defendant’s designation as level three sex offender by the Board is proper.

SORA provides three levels of registration and notification depending on the risk of reoffending. Level one, the lowest level, requires local law enforcement to be notified of an offender’s whereabouts. Level two is assigned to sex offenders with a moderate risk of committing another sex offense. It allows local law enforcement agencies to disseminate information about an offender to any entity with a vulnerable population. Those entities, in turn, may disclose such information at their discretion. The information includes the name and photograph of the offender, his approximate address and the address of any institution of higher education he attends. The third and highest level applies to individuals with a high risk of reoffending. It provides for disclosure of the same information applicable to level two offenders, with the addition of the offender’s exact address, place of employment and name of his school. Information as to all sex offenders is available to the public via a toll-free number and on the Internet as to level three offenders. Level one and two offenders previously were required to register annually for 10 years with the Division of Criminal Justice Services. As of January 2006, level one offender is subject to a registration period of 20 years and level two offenders are subject to lifetime registration. Level three offenders and offenders designated as sexual predators, sexually violent offenders or predicate sex offenders must register annually for life.

The Court held that, defendant’s contention that the District Court erred in relying on the automatic override for the prior Maryland felony sex crime conviction to find that he was a level three sex offender is unpreserved for appellate review. In any event, the contention is without merit. A defendant may be classified as a predicate sex offender based upon a conviction in a foreign jurisdiction where the out-of-state offense includes all the essential elements of an offense that is subject to registration in New.

The out-of-state felony conviction under Maryland Annotated Code, article 27, § 464B was a sex offense which arose from defendant rubbing his penis against the buttocks of a six-year-old male victim. This act would constitute the crime of sexual abuse in the second degree if committed in New York, and is a registerable offense under SORA. Thus, the automatic override to a level three sex offender designation, irrespective of the assessment of points scored on the risk assessment instrument, was warranted.

Defendant’s remaining contention that the Board of Examiners failed to assess points in the risk assessment instrument to designate defendant as a level three sex offender is improperly raised for the first time on appeal.

Accordingly, the order designating defendant a level three sex offender is affirmed.
Sex Offender Registration Act was meant to address the need to protect the public from the risk of repeat offenses by perpetrators of sex crimes, deemed inherently susceptible to recidivism. The Act requires that sex offenders be assessed a “risk level” at the time of sentence or prior to release from incarceration. The offender is entitled to notice of the risk evaluation proceeding and may request a hearing.
Continue reading

Published on:

This is a case for multiple sex crimes which the defendant has inflicted against a two year old child. Before the defendant was released from incarceration, she was evaluated by the Board of Examines or Sex Offenders and was found to be a low-risk level. However, in the case summary prepared by the same board, the defendant was found to be, by various other reasons, a level 3 sex offender or “high risk”.

The recommendations was consented by the defendant and a “risk level assessment” hearing was conducted. The result of the proceeding includes: the court said that it will not deviate from the report given by the Board of Examiners even if the court is endowed with the power to exercise its discretion. The Court said that the departure from the report will be the exception and not the general rule.

According to the court, it is not bound by the numerical score, or the Board’s suggestions, and the judges may depart from those recommendations based on the particular facts as well as the totality of the circumstances laid down before him. The court, may, rely upon may sources to determine the appropriate level to attach to the defendant.

Also, it is clear that the court may base said departure from the aggravating or the mitigating factors not otherwise taken into account by the guidelines. The recommendations made by the Board of Examiners are merely advisory.

In this instant case, the materials used by the board to conclude the numerical assessment of the defendant is the instrument, the board’s summary and the pre-hearing record, the defendant’s PSI (Pre-Sentence Evaluation) and pre-conviction motions and memoranda. There also exists a videotape of the crime itself which caught the defendant in flagrante delicto.
The defendant has garnered a score of 70 in the assessment test. However, according to the Board, the defendant should have been given an additional 20 points under “Risk Factor 1.7” and “relationship with the victim”.

As in this case, relationship with the victim was described as “stranger or established for the purpose of victimizing or professional relationship. Under the Sex Offenders Registration Act – Risk Assessment Guidelines and Commentary, relationship includes those who “exploit a professional relationship to victimize those who repose trust in them”.

In this instant case, it appears undoubtedly that the defendant was fire to tend to the two year old victim. The nanny was left alone, unsupervised, with the infant. As clearly established in this case, the trusted relationship was exploited and abused by the defendant by abusing the infant entrusted with her care.

With the limited instrument and the commentary, it appears, according to the court, that the defendant fits this category.

On the other hand, the defendant attacked the result and the summary as presented by the Board. However, the Board alleged that the findings were founded upon defendant’s long term history of mental health problems which includes depression, suicide attempts and disconfigured mental health treatment.

The Court ruled that the defendant was not a “high risk” sexual offender but merely a “moderate risk” offender. The court ruled that the defendant’s appropriate score is 90 or at least a “level 2” or “moderate risk”; the level also recognized the unique, and strange nuances of the crime as captured by the video, which the instrument obviously failed to record; and the level also has taken into consideration the long mental health history of the defendant.
Thus, the court ruled that a departure is required with all of the factors which has been taken into consideration, specifically that the defendant is a “level 2” or “moderate risk”. This level is necessary because her offense requires atypical vigilance and exceptional treatment. Therefore, premises considered, the defendant was adjudicated to be a Sexually Violent Offender in accordance with Corrections Law Section 168 a (7) (b).
Continue reading

Contact Information