October 28th, 2014
A judge in Kings County has suppressed evidence which would have shown a man charged with a sexual crime photographed the child sex victim. The evidence was not allowed to be presented in court. This was an interpretation by a judge in Brooklyn of the United States Supreme Court precedent which protects cell phones under the fourth amendment to the United States Constitution. The Supreme Court case stated cell phone material is protected and a search warrant is required to view the material on a cell phone.
About the Case
There had been a case in King County, Criminal Court before Judge Michael Gerstein. The case involved a Satmar Orthodox Jewish spiritual counselor who had molested a young girl for a period of three years. During the course of the trial he was charged with 59 counts of sexual abuse. He was convicted and sentenced to 50 years in prison.
Spectator at Trial – Cell Phone Search
During the course of the trial, the judge admonished spectators in the courtroom not to utilize their cell phones. Yona Weissman, who was in attendance at the trial, in violation of the judge’s order, utilized her cell phone for photographs during the course of the trial inside of the courtroom. A court officer took the cell phone from her and searched it. On the cell phone the court officer found photographs of the victim. Yona Weissman was charged with crimes related to the evidence uncovered during the search of her cell phone.
Judge Gerstein sitting in the Supreme Court in Kings County stated in his decision the search violated the Supreme Court’s recent holding in the matter of Riley v. California. The photographs of a sexual abuse victim could not be used in the prosecution of Ms. Weissman.
With the advance of technology, cell phones now store huge amounts of individuals’ private information. Although in this case a person guilty of a crime may have avoided conviction, it is important that privacy rights of Americans be maintained. Cell phones now have the capabilities that only a few years ago were reserved for desktop computers. Many individuals have all of their personal information, life history, photographs and all types of materials on cell phones. They need to be protected from reasonable search and seizure. The fourth amendment to the United States Constitution requires a search warrant under current law to search the material in a cell phone.
October 24th, 2014
A new law has recently gone into effect in the State of California. The purpose of this new statute is to clarify when during the course of sexual relations “yes” means “yes”. This California law sets up requirements for colleges with regard to the procedures for looking into allegations of improper sexual conduct.
This California law was submitted by California Senator Kevin deLeon from Los Angeles. Mr. deLeon’s intent with this new statute was to require an “affirmative, conscious and voluntary agreement to engage in sexual activity.” This new California statute states that silence or a lack of resistence can not be construed to constitute consent for sexual relations. Individuals high on drugs, intoxicated, unconscious or semi-conscious cannot consent to sexual relations under this California statute.
Although consent to sexual relations can be non-verbal under the California law, the statute does not say what constitutes non-verbal consent to sexual relations.
Victim’s rights advocates are major sponsors of laws preventing sexual attacks. Sexual assault advocates take the position victims do not have to prove they resisted a sexual assault for the sexual conduct to be improper.
September 15th, 2014
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Elliot S. Schlissel is a family law attorney. He can be reached at 1-800-344-6431 or by email at email@example.com
June 21st, 2014
An appeal was brought with regard to a conviction of endangering the welfare of a child by a man named Walcott. He had been on probation. He appeared at the probation department with his son. The probation officer felt that Walcott was intoxicated. A test was done on an alco-sensor machine. The machine indicated the presence of 0.129 of alcohol in his blood which was an indication he was intoxicated. Further testing was conducted by the probation officer. A urine test found the presence of cocaine and marijuana in Mr. Walcott’s urine. Mr. Walcott had a car which was parked nearby the probation department.
Walcott was charged with endangering the welfare of a child. This was based on the evidence he had alcohol in his system, his car was parked nearby and his son had accompanied him to the probation department. His conviction was based on the theory he drove his car while high on drugs and alcohol with his son present in the car to his meeting with his probation officer.
Walcott argued no one saw him drive his car and all the evidence against him was circumstantial. Unfortunately, the appeals court agreed with the trial court and affirmed his conviction.
Elliot S. Schlissel and his associates have been providing criminal defense for men and women charged with misdemeanors and felonies in the Metropolitan New York area for more than 35 years. Our law firms phones are monitored 24/7 to deal with individuals charged with crimes on weekends and evenings. Elliot and his staff of attorneys are available for free consultations with regard to issues involving arrest, search warrants and other charges involving criminal activity.
In the case of People v. Leonard, New York State Court of Appeals rendered a decision that the kidnapping of an individual’s own child, even though the individual was the residential custodial parent, was not a “legal impossibility.” The Court of Appeals said that while parents have a right to control their children’s movements, there are cases where they go too far and they violate the law.
The Mother’s Activities
Jacqueline Jordan prevented her five children and two adults, one of whom was a case worker, from leaving a room at a Catherine Street women’s shelter. This took place on October 3, 2013. Ms. Jordan placed a chair under the doorknob which prevented the children and adults from leaving the room for a period of an hour and twenty minutes.
In this case, the court found the mother’s conduct extreme and beyond the scope of a legitimate parental decision. The court went on to state her actions were “outside the bounds of a custodial parent’s lawful right to restrict her child’s movement.” Judge Statsinger found the mother’s behavior was unfathomable and her actions were not undertaken for the purpose of protecting her children or disciplining them. He went on to state “a parent who restricts the movement of an angry or unruly child, under the reasonable belief that such is necessary to prevent the child from harming another person or damaging property would…likely be acting on the lawful end of the Leonard spectrum.” He also went on to state “similarly a parent who restricts the movements of a sick child so the child will not infect others is also likely behaving lawfully. But…the court here discerns no such goal in the defendant’s behavior.”
Judge Statsinger came to the conclusion the criminal charge of unlawful imprisonment, attempted unlawful imprisonment, and endangering the welfare of a child were appropriate in this case.
If you are going to lock your children in a room, you better have a really good reason!
Elliot S. Schlissel represents fathers and mothers concerning applications for orders of protection, investigations by child protective service agencies, as well as defending them in Family Courts concerning accusations of child abuse and child neglect.
March 7th, 2014
A juvenile delinquency proceeding was brought before Judge Joan Posner sitting in the Family Court of Dutchess County. The presentment agency had brought a petition against a minor named Jared J.P. The allegations were that Jared had committed acts which constituted an attempted assault and the crime of menacing if he were charged as an adult. They sought to have Jared adjudicated as a juvenile delinquent.
Jared was represented by a court appointed guardian ad litem in this proceeding. The guardian ad litem requested the court dismiss the case against Jared in the interest of justice.
Jared Was Autistic
The allegations were that Jared, who was 16 years old, had been diagnosed with autism and additional mental illnesses. This diagnosis was initially made when he was 7 years old. The court appointed guardian ad litem for Jared claimed since the incident took place, he had been in a residential therapeutic educational institution. While at this residential facility his conduct had improved dramatically. In addition, it was pointed out by Jared’s attorney his family would not cooperate with regard to his prosecution. They did not want to traumatize his brothers and sisters and grandmother by forcing them to testify at trial.
A Finding of Juvenile Delinquency Would Serve No Purpose
Judge Posner rendered a decision dismissing the juvenile delinquency petition brought by the presentment agency. In her decision she stated finding Jared was a juvenile delinquent would not serve a useful purpose. In fact, she held it would be an injustice to punish Jared. Judge Posner found it was in Jared’s best interests he should remain at the residential therapeutic educational facility and it was not necessary for the court to take any further action on this case.
The Law Offices of Elliot Schlissel has extensive experience in representing minors with regard to Family Court proceedings concerning juvenile delinquency issues and criminal proceedings brought in the Criminal Courts against minors throughout the Metropolitan New York area.
February 12th, 2014
The United States Supreme Court Will Rule on This Matter
The United States Supreme Court recently agreed to hear a case regarding whether a police officer can search the cell phone of an individual under arrest without obtaining a search warrant. Today cell phones contain an enormous amount of information about an individual. The legal issue presented to the Justices of the United States Supreme Court is whether the information obtained from a warrantless search of an individual who is under arrest’s cell phone is an unreasonable search in violation of the individual’s fourth amendment rights to the US Constitution. Prosecutors throughout the entire country are paying attention to two cases the Supreme Court has before it dealing with warrantless cell phone searches. The technological advances made regarding the amount of personal information stored on cell phones will have a significant impact on American’s lives and the ability of law enforcement agencies to obtain personal information from cell phones.
Searches of Individuals Under Arrest
Police officers can search an individual and the area around him without a search warrant at the time of an arrest. This is to ascertain the individual is not armed and does not have weapons near him or her that could be used to injure the police officers. The police also can secure evidence maintained on the defendant related to the reasons for his or her arrest.
The first case before the Supreme Court involves an individual by the name of David Riley. Mr. Riley was convicted in California of three charges relating to a situation in San Diego in which gun shots were fired at a car. The prosecutors were able to produce evidence from a photograph on his cell phone that showed him standing in front of a car similar to the one that was at the crime scene.
In the second case before the United States Supreme Court the Federal Government is appealing an Appeals Court decision that tossed out three drug and fire arm charges against Brima Wourrie. Wourrie had been convicted by a jury in Massachusetts. The U.S. Circuit Court of Appeals said in a ruling in May, that police officers could not search Wourrie’s phone without a warrant.
The United State Supreme Court is expected to hear oral arguments on both cases in April of this year.
Opinion of the Writer
The United States Supreme Court should not allow warrantless searches of cell phones. Cell phones are mini computers today that maintain enormous amounts of personal information. The technology that allows ever expanding amounts of information to be maintained on smartphones should be protected under the Fourth Amendment to the United States Constitution which bars unreasonable searches without warrants.
The Law Offices of Elliot Schlissel are composed of five attorneys. The attorneys represent individuals charged with crimes throughout the Metropolitan New York area. The firm has extensive experience in representing individuals charged with misdemeanors and felonies. The criminal defense lawyers at the Law Offices of Elliot Schlissel are available to deal with criminal matters seven days a week.
January 21st, 2014
In the beginning of May 2013, Christian Munez was arrested for possession of marijuana. He was brought to the 44th precinct in the Bronx. He was questioned by Sergeant Christopher Pascale. Sergeant Pascale did not read Mr. Munez his Miranda Rights. Mr. Pascale questioned Mr. Munez about other crimes in that area of the Bronx. He alluded to the fact Munez was lying and stated “I wouldn’t be surprised if you had a gun.” Sergeant Pascale noted Munez’s evasive reaction to the discussion of there being a gun in his home. This caused Sergeant Pascale to question another man who had been arrested at the same time with Mr. Munez. This other defendant acknowledged that there was probably a gun in Munez’s home.
Search of Munez’s Home
Police officers went to Munez’s apartment. While the officers were at Munez’s apartment, Sergeant Pascale went back to the precinct. He told Munez that if they found a gun in his apartment, everyone in the apartment would be arrested and jailed. The officer advised him, in the event he refused to consent they would get in touch with his parole officer. The parole officer could search the apartment without a warrant and cause everyone in the apartment to be incarcerated.
Judge Suppresses the Seized Gun
District Court Judge Louis Kaplan suppressed the gun seized from Munez’s home. His decision stated the police representations about getting the search warrant to Christian Munez, and everyone would be arrested invalidated Munez’s consent for the search. Judge Kaplan stated the involuntary consent and a similar consent to a search obtained from Munez’s father required that the gun police found be kept out of evidence. Judge Kaplan further stated in his decision “where police have an honest basis for their statement, it is not coercive to make it.” “But false threats made in order to obtain consent deprived the suspect of a free and informed choice based on the realities before him.” The judge also held the representations to Mr. Munez that his family members would be arrested if he did not consent to the search was also coercive.
December 11th, 2013
New York is one of two states which allow juveniles to be tried as adults at age 16. The large majority of states do not allow prosecution as an adult until such time as the individual reaches the age of 18. It should be noted an individual of age 18 is considered an adult for purposes of voting.
Juveniles who are tried as adults and sentenced to an adult prison facility do not do well in these prisons. In most situations they end up being tutored by hardened criminals to become better criminals once they get out of jail. Teenagers in New York State who commit crimes should be dealt with under a juvenile justice system and not an adult legal system. In a juvenile justice system, they can receive rehabilitation services and training. They can also avoid obtaining a criminal record that will stay with them for the rest of their lives and have a negative impact on their obtaining a job.
Bill In the New York State Legislature Regarding Juvenile Justice
Judge Lippman, the Chief Judge of the State of New York, has proposed a new piece of legislation to the New York State Legislature which calls for the creation of a special court for 16 and 17 year olds charged with non-violent crimes in the State of New York. This proposal asks that courts have judges with special training concerning adolescent development and therapeutic approaches to juvenile criminal activity. It is suggested in this proposed legislation, if the case is resolved, no criminal charges should be filed against these adolescents. The fingerprints should be destroyed and the criminal records are to be sealed. Judge Lippman’s goal is to treat children as children. He doesn’t want them treated as adults with the stigma of a crime on their record for the rest of their lives.
Judge Lippman has the right idea. Putting juveniles in jail destroys their lives, is not cost effective, and is not the best route for an enlightened society to take in dealing with the crimes of a non-violent nature. I hope the New York State Legislature passes the new legislation.
December 4th, 2013
Recently eighteen graduates from the Nassau County Drug Treatment Court Program had a celebration. This was the thirtieth graduation from the Nassau County Felony Treatment Court. The court which combines therapy, random drug testing and court appearances provides an alternative to jail for alcoholics and drug offenders.
The Court’s Success Rate
More than 400 people have been involved in the program at the Nassau County Felony Drug Treatment Court since 2009. Of these 400 individuals, only 3 have committed crimes again. This is an outstanding achievement.
Cost Savings from the Court
The Nassau County Drug Treatment Court is saving the taxpayers of Nassau County millions of dollars. The treatment program costs far less than incarcerating the individuals charged with crimes. Individuals involved in the program have stated the program has “institutionalized compassion.” Instead of treating the people in the program as criminals they are treated with humility. The program lasts eighteen months. In addition, it is followed by a one year conditional release. Individuals who graduate from the program, who have been charged with felonies, can have their convictions dismissed or reduced to misdemeanors. In addition, they can have their record sealed in certain circumstances.
Judge Frank Gulotta who sits in the County Court in Nassau County stated with regard to the program that it is a “reclamation project.” He requested the program be expanded to include other individuals charged with felonies. Among those other individuals he would like to see included in the program are those charged with identity theft. He made this suggestion because many of the drug offenders are involved in identity theft too. He went on to state “instead of letting someone sit in prison for umpteen years, you are essentially producing people who can be productive members of society.”
Elliot Schlissel Esq. and his associates provide aggressive legal representation for individuals charged with misdemeanors and felonies throughout the metropolitan New York area. In addition, they represent individuals being investigated for criminal activity.