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Published on: March 2, 2013

Defendant Appeals Order of Disposition Regarding Alleged Probation Violation

by Stephen Bilkis

A Lawyer said that, in a juvenile delinquency proceeding pursuant to Family Court Act article 3, defendant appealed the order of disposition of the Family Court, Queens County, dated February 10, 2005, which, upon a fact-finding order of the same court dated November 22, 2004, made after a hearing, finding that the appellant had committed an act which, if committed by an adult, would have constituted the sex crime of sexual misconduct, placed him under the supervision of the “Probation Department of the County of Queens” for a period of 18 months. The appeal brings up for review the fact-finding order dated November 22, 2004.

A source said that, defendant in another separate case for the crime of rape also filed with the Supreme Court, Appellate Division, Second Department, an application for writ of error coram nobis to set aside a judgment of the County Court, Queens County, sentencing defendant as a second offender on his conviction in New York of second degree assault. Defendant was found to be a second offender because of an alleged prior conviction in California of assault with intent to commit rape. The defendant had been charged in California with assault with intent to commit rape in violation of California statute and had pleaded not guilty. The California transcript indicated that court found defendant guilty as charged in the information. Thereafter defendant was sent to a California mental institution. It was the contention of the defendant that the California proceedings did not constitute a judgment of conviction under California laws and that therefore he did not have a prior felony conviction.

Published on: February 26, 2013

Defendant Files Appeal Requesting to Withdraw Plea in Criminal Case

by Stephen Bilkis

In this criminal case, the defendant appealed from (1) a judgment of the Supreme Court, Queens County, rendered July 24, 1995, convicting him of attempted rape in the first degree and rape in the second degree, upon his plea of guilty, and imposing sentence, and (2) an amended judgment of the same court, also rendered July 24, 1995, revoking a sentence of probation previously imposed by the same court, upon a finding that he had violated a condition thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of attempted burglary in the second degree. A Lawyer said that, by decision and order of this court dated November 24, 1997, the matter was remitted to the Supreme Court, Queens County, to hear and report on the defendant’s motion to withdraw his plea, and the appeal was held in abeyance in the interim. The Supreme Court has filed its report.

The issue in this case is whether defendant may withdraw his plea in the interest of justice.

Published on: February 24, 2013

Court Rules on Juvenile Delinquency Hearing Regarding Rape Charges

by Stephen Bilkis

This is a juvenile delinquency petition filed by the respondent who has committed acts which, if he were an adult, would have been categorized as attempted rape in the first degree, sexual abuse in the first and third degrees, rape in the third degree, forcible touching and sexual misconduct.

This petition revealed that on January 2, 2010, the respondent, a minor, committed multiple sex offenses against the victim who was also a minor. The deposition given by the victim stated that at approximately 12:00 o’clock in the morning on January 2, 2010, the respondent put his fingers inside her vagina and moved them in and out. The victim told the respondent to stop but then he put his penis inside her vagina and kept it thereat for a few minutes. The victim said that she kept trying to tell the respondent to stop and that she tried to get up but couldn’t do since the respondent kept on pushing her down. The victim was just eleven year old.

Published on: February 17, 2013

Defendant Files Appeal Challenging Evidence Omitted at Trial

by Stephen Bilkis

This an appeal by the defendant from a judgment of the Supreme Court, Queens County rendered July 8, 1988, convicting him of robbery in the first degree and criminal possession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence. A source said that, the defendant was charged and convicted of robbing the complainant at knife point on August 4, 1987, at approximately 11:30 P.M. Accordingly, to her trial testimony, the complainant had been beaten and raped by a different assailant prior to the robbery. The rape allegedly occurred in an apartment located on 89th Avenue and 162nd Street in Queens. After the rape, the complainant left the apartment and was walking to a nearby hospital when she allegedly met the defendant. She testified that she had previously met the defendant when he dated her sister in June 1987.

A Lawyer said that, she further testified that the defendant approached her and asked whether she had been raped. After she replied that she had, the defendant told her to wait in front of a nearby building while he obtained a gun in order to apprehend the rapist. Instead, the defendant returned after several minutes, allegedly pointed a knife at the complainant’s face, and demanded jewelry from her. She complied by handing over three rings. The defendant then took the rings and rode away on a bicycle. The complainant also testified that she ran to a hospital, four blocks away, immediately after the robbery. She was admitted to the hospital and discharged two weeks later, at which time she reported the subject robbery to the police.

Published on: February 15, 2013

Defendant Appeals Criminal Conviction in NY Appellate Court Alleging Ineffective Counsel

by Stephen Bilkis

The defendant was charged in Queens County of kidnapping in the first, eight counts, and second degrees; rape in the first degree, two counts; sexual abuse in the first degree, two counts; and criminal possession of a weapon in the second degree. Thereafter, the defendant was convicted, after a jury trial, of kidnapping in the first degree, four counts; rape in the first degree, two counts; kidnapping in the second degree; sexual abuse in the first degree, two counts; and criminal possession of a weapon in the second degree. On 15 August 1996, the defendant was sentenced. The defendant appealed the judgment of convictions. According to the defendant, the Court erred by refusing to charge the jury as to the defense of duress and his sentence was excessive. The Appellate Division, Second Department modified the judgment by vacating the conviction of one count of sexual abuse, finding that no evidence pertaining to that count was adduced at trial. Other than that, the Appellate Division affirmed the judgment. The defendant then sought leave to appeal to the Court of Appeals. However, that application for leave was denied. The defendant then moved to vacate his judgment of conviction and argued that he was denied effective assistance of counsel, among other things, because his trial counsel failed to have the serological evidence tested for DNA after the defendant denied any involvement in the rape. On 18 June 2001, the defendant’s motion was denied, and his claims were found procedurally barred pursuant to CPL 440.10 based on the fact that the allegations were in the record, and could have been reviewed on defendant’s direct appeal. The defendant’s claims were found by the court bereft of merit. The defendant then sought leave to appeal the denial of his motion to vacate judgment, and sought a writ of error coram nobis. A sargued by the defendant, his appellate counsel was ineffective for failing to raise on appeal the claims he raised in his motion to vacate. The Appellate Division denied both applications, viz.: defendant’s application for leave to appeal and his application for a writ of error coram nobis.

The defendant, pro se, now moved for an order directing that forensic Deoxyribonucleic Acid (DNA) testing be performed on specific evidence; for an order vacating the judgment of conviction; and to have the defendant produced at any hearing.

Published on: February 13, 2013

Defendant Files NY Appeal Regarding Grand Jury Proceeding

by Stephen Bilkis

This is a case wherein defendant moved for an order to grant inspection of the Grand Jury minutes ad dismissing or reducing the relevant counts of the indictment as not supported by legally sufficient evidence.

The defendant likewise moved for an order of dismissal on the indictment on various grounds arising out of a defective grand jury proceeding.

Published on: February 12, 2013

Defendant Files Motion for Leave to Present Additional Arguments on Appeal

by Stephen Bilkis

The is a case where defendant filed a motion for leave of court to present additional arguments on appeal for a judgment of the Supreme Court rendered on December 20, 2001. Said judgment, subject matter of this petition, was rendered by decision and order of the court on February 23, 2004.

The Court has ruled to recall and vacate the order and decision issued by the Supreme Court and substituted the same based on the memorandum and papers filed in support of the motion and other documents filed in relation thereto.

Published on: February 10, 2013

Defendant Appeals Designation as Level 3 Sex Offender

by Stephen Bilkis

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.

Published on: February 8, 2013

New York Appellate Court Determines if Defendant is Entitled to Evidentiary Hearing Pursuant to Due Process Clause

by Stephen Bilkis

The defendant was charged with two counts of Sexual Abuse in the First Degree, a D violent felony, and Endangering the Welfare of a Child, an A misdemeanor. A Lawyer said that, pursuant to a plea bargain agreement, the defendant pled guilty, under count one to the lesser charge of Sexual Abuse in the Second Degree, an A misdemeanor, and under count three to Endangering the Welfare of a Child, an A misdemeanor, in satisfaction of the indictment.

A source said that, prior to sentence, the Court notified the defendant that based upon his conviction for Sexual Abuse in the Second Degree and in accordance with the public notification and disclosure provisions of the New York State Sex Offender Registration Act, commonly referred to as “Megan’s Law”, the Court intended at the time of sentence to certify the defendant as a sex offender as required by Correction Law § 168-d and to assign a risk assessment level of 3 to the defendant using override provision (iv) of the Risk Assessment Guidelines established by the Board of Examiners of Sex Offenders pursuant to Correction Law § 168-1(5). The defense counsel was given the opportunity to review the presentence report prepared by the Probation Department with an attached clinical assessment from Child Abuse Prevention Behavior Associates.

Published on: February 7, 2013

The defendant was arrested and subsequently arraigned

by Stephen Bilkis

The defendant was arrested and subsequently arraigned on a charge of assault in the third degree in violation of Penal Law § 120.00 (1). The People moved in line for a ruling allowing them to call an expert witness on domestic violence to testify on their direct case regarding the “battered woman syndrome” (hereinafter referred to as BWS). The complainant and the defendant dated periodically for a period of time encompassing the past 13 years. The instant charge stems from August 25, 2003, when the defendant is alleged to have picked up the complainant, thrown her over a couch, pushed her to the ground, and stomped on her groin, thereby causing her to allegedly suffer bruised ribs and a fractured coccyx. In support of their application, a Lawyer said that, the People detail the complainant’s allegations of physical and psychological abuse by the defendant over a prolonged period of time. Included are a litany of alleged violent acts directed at her by the defendant, from 1991 to 2003. The alleged violence included threatening to kill the complainant on numerous occasions, repeatedly beating her, urinating on her, various acts of forcible sex abuse, and constant berating of her. Although these acts occurred over a period of 13 years, except for brief sporadic periods of separateness, the complainant did not leave the defendant nor immediately seek protection from the police. All of the prior alleged violent acts were also the subject of the People’s Molineux application, which was separately decided.

A Nassau Sex Crime Lawyer said that, the charges contained in the criminal complaint before this court allegedly occurred on August 25, 2003. The complainant did not report the alleged crime to the police on August 25, 2003. On October 19, 2003, after other alleged incidents, the complainant reported this charge to the police along with four additional charges. Thereafter, the defendant was arrested for the above-listed crimes.