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Published on: August 14, 2023

Appellate Division Upheld a Prostitution Conviction. People v. Ghang, 2004 NY Slip Op 50965 (N.Y. 2004)

by Stephen Bilkis

Prostitution, as defined under New York law in Penal Law section 230.00, is the exchange of sexual services for money or any other form of compensation. Generally when people are charged with prostitution, it is a misdemeanor, resulting in a fine and little if any jail time. However, it is still a crime and will result in a criminal record. In People v. Ghang, defendant Lin Ghang challenged the sufficiency of the evidence to support a conviction.

Factual Background

In this case, the defendant Ghang faced a conviction of prostitution under Penal Law § 230.00. The heart of the matter was whether there was sufficient evidence to support this conviction and whether the verdict stood up to scrutiny.

Published on: August 7, 2023

To be Convicted for Forcible Touching, Proof of Force is Not Required. People v. Soto, 745 N.Y.S.2d 880 (N.Y. Crim. Ct. 2002)

by Stephen Bilkis

Facial insufficiency in New York criminal law refers to a legal challenge asserting that the initial allegations in a complaint or accusatory instrument lack sufficient factual basis to support the charges brought against the defendant, potentially leading to a dismissal of the case if successful.

In People v. Soto, the defendant was charged with the crime of forcible touching. Forcible touching involves intentionally touching the sexual or intimate parts of another person for sexual gratification, and without any legitimate purpose. The defendant challenges the case against him on the basis of facial insufficiency, arguing that the prosecution failed to allege facts establishing the lack of consent, a crucial element under Penal Law § 130.05.

Factual Background

Published on: July 31, 2023

Court Concluded that the Crime of Forcible Touching does not Requirement Forcible Compulsion. People v. Powell, 19 Misc 3d 364 (N.Y. Crim. Ct. 2008)

by Stephen Bilkis

In the world of criminal law, precision and clarity are paramount, for they often serve as the linchpin upon which cases are built. Our journey today takes us into the heart of a gripping legal case: People v. Powell, a 2008 ruling by the New York Criminal Court that centers on the interpretation and application of a relatively new statute – “forcible touching.” This case is not just a mere courtroom drama; it carries significant implications, shedding light on how the legal system navigates the intricacies of defining criminal acts and intent.

Factual Background

In the summer of 2007, Daniel Powell, was charged with forcible touching and sexual abuse in the third degree. According to the victim, SM, Powell lay down next to her, placed his head on her buttocks, and proceeded to touch her vagina over her clothing. SM asserted that she did not provide her consent for these actions.

Published on: June 5, 2023

Appellate Division Upheld the Constitutionality of Provisions of SORA. People v. Cassano, 34 AD3d 239 (N.Y. App. Div. 2006)

by Stephen Bilkis

Sex offender registration laws aim to enhance public safety by monitoring convicted sex offenders. However, their application often raises complex constitutional questions. One such case that has come under scrutiny is People v. Cassano, which revolves around the constitutionality of requiring individuals to register as sex offenders. In this blog post, we will dissect the case, examining the factual background, the court’s holding, the ensuing discussion, and ultimately, the implications of this decision on sex offender registration laws.

Factual Background

In 1996 defendant Cassano was convicted of attempted kidnapping in the second degree. As a result of this conviction, Mr. Cassano was subject to adjudication as a sex offender under the Sex Offender Registration Act (SORA), a legal framework in New York aimed at registering and monitoring sex offenders. Specifically, Mr. Cassano’s adjudication was carried out under Correction Law § 168-a (2) (a) (i), which includes certain abduction-related crimes committed against children by individuals other than their parents within the definition of “sex offenses.”

Published on: June 15, 2020

Court of Appeals Considers Whether Sentencing Enhancements Were Appropriate for a Hobbs Act conviction – United States v. Oneal, No. 18-1710 (2d Cir. 2020)

by Stephen Bilkis

In United States v. Oneal, the Court of Appeals for the Second Circuit examined whether a defendant who pled guilty to conspiracy to commit Hobbs Act robbery was property sentenced under the federal guidelines. Pursuant to 18 U.S.C. § 1951, the Hobbs Act prohibits obstructing commerce by means of robbery or extortion or attempting or conspiring to do so.

Defendant Oneal was arrested and convicted for his involvement in a string of cellphone store robberies. In the first robbery, upon entering the store, the defendant behaved as if he had a firearm in his waistband, and he warned those in the store not to try anything “stupid.” He pushed an employee into an inventory room. He got away with inventory. In the second robbery, he also pretended as if he had a firearm in his belt. He forced the story occupants to the back of the store and got away with inventory and cash. He attempted to rob a third store, but one of the occupants identified himself as a police officer. The defendant fled and was apprehended. Eventually he pled guilty to one count of the federal crime of Hobbs Act robbery conspiracy in violation of 18 U.S.C. § 1951(a).

The defendant was sentenced to 84 months in prison and 3 years of supervised release. His sentence included the application of a three-level enhancement for possession of a dangerous weapon or giving the impression of having a dangerous weapon under U.S.S.G. § 2B3.1(b)(2)(E), and a two-level enhancement for physical restraint, U.S.S.G. § 2B3.1(b)(4)(B). The defendant challenges the application of the enhancements.

Published on: June 15, 2020

Court Reverses Lower Court Decision Granting Defendant’s Motion to Suppress Evidence – People v Page 2020 NY Slip Op 03265

by Stephen Bilkis

In this case the Court of Appeals considered whether the lower court rightly relied on the decision in People v Williams, 4 NY3d 535 [2005] as the basis for granting the defendant’s motion to suppress evidence recovered in the vehicle search.

In People v. Williams, two officers of the Buffalo Municipal Housing Authority were on patrol in one of that city’s housing projects when they observed the defendant driving without a seat belt. The officers found that the defendant was in possession of cocaine and arrested him. The defendant moved to have the cocaine suppressed. Under New York law, the housing authority officers are considered peace officers. However, the arrest of the defendant occurred outside of the officers’ geographical area of employment. The People argued that the arrest was a citizen’s arrest. The court rejected the People’s argument and granted the defendant’s motion because the Housing Authority officers were not acting as citizens but were acting under the color of the law. Because the arrest occurred outside of the officers’ area of authority, it was not valid.

The events that led to the arrest of the defendant in People v. Page began when a federal marine interdiction agent, using the emergency lights on this truck, stopped the vehicle in which the defendant was a passenger due to erratic driving. The driver pulled over the vehicle and the marine agent, who sat in his truck behind the pulled over vehicle, contacted Buffalo Police. Under New York law, federal marine interdiction agents are not classified as peace officers.

Published on: June 8, 2020

Court of Appeals Upholds Lower Court Decision Granting Defendant’s Motion to Suppress Evidence – People v Williams, 4 NY3d 535 (2005)

by Stephen Bilkis

In this case the Appellate Division considered whether it the Supreme Court appropriately granted the defendant’s motion to dismiss drug and traffic charges based on an arrest by Buffalo Municipal Housing Authority officers.

Two officers of the Buffalo Municipal Housing Authority were on patrol in one of that city’s housing projects when they observed the defendant driving without a seatbelt. Even though the scope of employment of those officers did not extend to the area where they stopped and questioned the defendant, the officers did so anyway. Under New York law, officers of the Buffalo Municipal Housing Authority are classified as peace officers. They found that the defendant was in possession of cocaine and arrested him. The defendant was indicted for criminal possession of a controlled substance in the fifth degree and several violations of the Vehicle and Traffic Law.

The defendant moved to have the charges dismissed on the basis that the arrest of the defendant occurred outside of the officers’ geographical area of employment. As a result, the officers lacked jurisdiction to make the arrest. The People countered by arguing that if the officers were acting outside of their jurisdictional authority, the arrest was still valid because the officers made a citizen’s arrest. The Supreme Court granted the defendant’s motion and dismissed the charges. The People appealed.

Published on: May 11, 2020

Sentencing Court Erred in Unsealing the Court Record Related to a Different, Unrelated Proceeding – People v Anonymous, 2020 NY Slip Op 01113

by Stephen Bilkis

When it comes to sentencing in a criminal case, a court is not allowed to consider a proceeding in which the defendant was ultimately acquitted or that was otherwise resolved in favor of the defendant. In this case the Court of Appeals considered whether the Appellate Division properly concluded that the defendant in a criminal possession of a controlled substance case was not entitled to resentencing when the sentencing court improperly considered unsealed records related to another criminal proceeding that resulted in the defendant being acquitted.

In this drug crime case, the defendant pleaded guilty to criminal possession of a controlled substance in the fourth degree. The deal he struck with the prosecution was that in exchange for pleading guilty he would receive a sentence of four years of imprisonment followed by three years of post-release supervision. However, there was a condition to the defendant receiving this sentence: he had to stay out of trouble. In other words, if the defendant committed another crime, the sentencing agreement was void.

Before the sentencing hearing the defendant was again arrested and was prosecuted for another crime. Had he been convicted, this would have been an obvious violation of the plea agreement. However, he was ultimately acquitted and the transcript of the trial was sealed pursuant to CPL 160.50. Under New York’s sealing law, under certain circumstances a criminal record is hidden from public view and from most government agencies. However, law enforcement can access the records, as can the courts and certain agencies.

Published on: April 27, 2020

Court Rejects Defendant’s Claim that Sentence Was Too Lenient – People v Francis 2020 NY Slip Op 00996

by Stephen Bilkis

It may seem odd that a defendant would challenge a sentence in a criminal case on the ground that it was too lenient. However, that is exactly what happened in People v Francis. What makes this case even more odd is that the defendant moved to set aside a sentence that he already served nearly 30 years prior to when he filed the motion.

In 1988 the defendant was sentenced to six months in prison after pleading guilty to third-degree criminal possession of a weapon. In 2015, pursuant to CPL 440.20, the defendant filed a motion to set aside the sentence on the ground that it was illegally lenient. In addition to the 1988 conviction, over 15 year period the defendant had been convicted other crimes, but under aliases, including a 1982 nonviolent felony conviction. As a result, he received sentences that were more lenient than they should have been given his true criminal history.

In 1997 the defendant was again arrested. This time, after a jury trial, the defendant was convicted of robbery in the first degree, a violent felony. Based on his 1988 conviction as well as a 1991 conviction, the defendant was adjudicated a persistent violent felony offender and was sentenced to 23 years to life in prison.

Published on: April 20, 2020

Failure to Disclose a Surveillance Video was a Violation of Defendant’s Constitutional Rights- People v Ulett, 2019 NY Slip Op 05060

by Stephen Bilkis

In this case the Court of Appeals considered whether the defendant in a murder case was entitled to a new trial due to the prosecution failing to disclose potentially exculpatory evidence.

The events that eventually lead to the defendant being arrested began in March 2008. The victim was shot and killed in front of an apartment building. There were several eyewitnesses who either identified the defendant as the shooter or saw the defendant at the scene at the time of the murder. The defendant was eventually arrested and tried. While several witnesses testified that the defendant was at the scene, on cross examination, the witness statements were not consistent. In fact, one witnesses testimony contradicted that of another witness named Cream. Cream was also a childhood friend of both the defendant and the victim. Cream was a key witness against the defendant at the trial. However, he fled he scene without talking to the police. He only came forward 10 months later in an effort to make a deal on pending unrelated criminal charges that he was facing. Cream testified that he was standing with the victim when the defendant walked up, argued with the victim, and then shot him. The defendant was convicted of murder.

At the trial the prosecution stated that there was no video of the incident. It turns out that there was indeed a video and the prosecutor had it at the time of the trial. However, the District Attorney’s Office did not turn it over to the defendant until years after the verdict. The video showed images of those near the victim when he was shot but did not clearly show who shot the victim.