New York Criminal Lawyer Blog

A man knocked on an apartment door. He claimed to be delivering something for the resident in the apartment. He asked the resident for some personal identification. A New York Criminal Lawyer said the resident of the apartment left the apartment door open and left the man at the door while she went inside the apartment to get her ID. With the apartment door left open, a television set can be seen which was put on a stand situated very near the open apartment door. On the floor near the television, there were sweaters scattered all over. The man took the TV and the sweaters on the floor.

A Westchester County Criminal Lawyer said the man was seen by another delivery man who was making a delivery in a nearby apartment at the same time. He saw the bogus delivery man go inside the apartment and leave holding the TV set and the sweaters. He also saw the bogus delivery man leave the apartment and ride a bike while carrying the TV set and the sweaters. The delivery man followed the bogus delivery man and saw that at the nearest corner, the bogus delivery man dropped the TV and the sweaters. He left them there on the street where they fell. And he rode the bike all the way to a nearby restaurant. At the restaurant premises, the bogus delivery man left the bike. He went to the parking area of the restaurant and rode in a car. The delivery man wrote down the license plate of the bogus delivery man’s car. When a police cruiser came by, the delivery man told them his story and gave them the license plate of the bogus delivery man. He also led them to the spot where the TV and the sweaters were dropped.

The bogus delivery man was later arrested. He was charged with two crimes in one information: he was charged with breaking and entering with intent to commit grand larceny and grand larceny. The bogus delivery man moved for a trial without a jury. The man was convicted with breaking and entering with intent to commit grand larceny but he was convicted only of petit larceny and not grand larceny because the prosecution failed to prove that the properties taken were valued beyond $100.

The bogus delivery man appealed his conviction. He claims that he cannot be convicted of the crime of breaking and entering with intent to commit grand larceny when what was proved to have been committed by him was only petit larceny.

The only question before the Court is whether or not the conviction of the bogus delivery man for breaking and entering with intent to commit grand larceny was proper and supported by sufficient evidence.

The Court held that intent to commit grand larceny can usually be proven by evidence that grand larceny was indeed committed. To prove grand larceny, it is not enough to prove that property was taken, there must also be proof that the property taken had a value above one hundred dollars.
The value of the property taken, however, is not the only circumstance from which intent to commit grand larceny can be inferred. If there other facts are proven that show intent to commit grand larceny, then even if the grand larceny count is not proven, and the accused is proved to have only committed petit larceny, this does not negate that there was intent to commit grand larceny. It is possible that the bogus delivery man had the intent to commit grand larceny but because of supervening circumstances, he was only able to take property worth less than one hundred dollars and was convicted only of petit larceny.

In this case, however, there was no other proof of intent to commit grand larceny other than the taking of the television and the sweaters. There were no other circumstances proven from which intent to commit grand larceny can be inferred. Thus the conviction for breaking and entering with intent to commit grand larceny cannot be supported by the evidence proved. The case was remanded for resentencing.

Were you charged with breaking and entering with intent to commit grand larceny? You need the assistance of a Florida Criminal Lawyer who can enlighten you as to the evidence required to prove this charge. A Florida Criminal Attorney can advice you if the prosecution has presented sufficient evidence to prove the charge. Call or visit any of the offices of Stephen Bilkis and Associates in Florida. Speak with any of their Florida Criminal attorneys whether you have been charged with theft, sex crimes or drug possession.

A man broke into and entered a dwelling house. Once inside, he committed grand larceny by taking away from the premises properties belonging to the owner of the dwelling house which amounted to more than one hundred dollars.

The prosecutor was charged under an information with two crimes: the breaking and entering a dwelling with intent to commit grand larceny; and grand larceny. The man pleaded not guilty and he was tried before a jury. He was later convicted by that jury for the two crimes of breaking and entering with intent to commit grand larceny and grand larceny. The trial court judge sentenced the man to imprisonment of two years for the grand larceny and one year for the breaking and entering with intent to commit grand larceny, both sentences to be served concurrently.

The man appealed the conviction and the sentences imposed upon him. The sole ground of his appeal was that he should not have been charged, tried, convicted or sentenced to two separate crimes of breaking and entering to commit grand larceny and grand larceny. He claims that the grand larceny should be comprehended in the one charge of breaking and entering with intent to commit grand larceny because the grand larceny was just an element or a facet of the crime of breaking and entering.

The only question before the Court is whether or not the man was wrongfully charged, tried, convicted and sentenced to two separate crimes.

The Court held that the oldest decisions of the courts of Florida in 1954 affirmed that two separate crimes were committed: the breaking and entering with intent to commit grand larceny and the crime of grand larceny. Two separate sentences were imposed upon the two crimes.

The Court also held that there was a time when the criminal procedure in Florida was amended and that the two separate crimes of breaking and entering with intent to commit grand larceny and grand larceny can be charged but under two separate indictments for there to be imposed two different sentences on the two separate charges.

In the 1970s, cases were decided to the effect that when the two offenses were charged in only one indictment or criminal information, then they constitute only facets of one criminal transaction. Then there must be only one sentenced imposed. The sentence imposed must be the sentence for the highest crime that was charged and proved.

The Court reasoned that in the 1970s, the legislature rationalized the criminal statutes. The crime of breaking and entering can be committed with intent to commit only a misdemeanor and the penalty for it was five years imprisonment. If the crime of breaking and entering were committed with felonious intent, the penalty was fifteen years’ imprisonment. In the case decided in the 1970s, the breaking and entering with felonious intent was proved to have been committed. The felonious intent was proved by introducing proof of the grand larceny committed consequent to the breaking and entering. This was the language of the criminal information against the accused. Thus, grand larceny was only pleaded under the information as proof of the graver offense of breaking and entering (or burglary) with felonious intent. For this reason, the holding of the Courts limited the sentence to the graver crime of breaking and entering with felonious intent only because there was no separate crime of grand larceny charged.

In this case, the Court adhered to the holding under the oldest decisions that the two crimes are separate and distinct crimes which may be charged as two counts under one indictment. The Court reasoned that two separate crimes have been charged under one criminal information and two separate and distinct crimes were proved at trial. The crime of grand larceny was not pleaded merely as proof of the felonious intent under the breaking and entering. Two separate sentences were thus correctly imposed. The appeal is denied.

In the criminal charge against you, are the two crimes of breaking and entering with intent to commit grand larceny and grand larceny appear? You need the assistance of a Florida Criminal Lawyer who can explain to you if under the indictment or information, you were charged with two crimes. A Florida Criminal Attorney can argue that the grand larceny merely appears in the information as proof of the felonious intent under the crime of breaking and entering with intent to commit grand larceny. At Stephen and Bilkis and Associates, the Florida Criminal attorneys on their staff are ready and willing to represent and defend you whether you have been charged with sex crimes, theft or drug possession. Speak with any of the Florida Criminal lawyers from Stephen Bilkis and Associates today.

A man entered a home in Dade County, Florida. He did this in the middle of the night without the knowledge and consent of the two people who lived in the premises, a brother and a sister. The man ransacked the house and took away with him a color television set. He was later apprehended by the police.

A New York Criminal Lawyer said the charges of larceny and burglary were brought against him. The larceny charge was brought for the taking of the television while the charge of burglary was charged for breaking and entering into the house owned by another person for the purpose of committing a crime.

The criminal information filed against him alleged that sometime on May 9, 1976 in Dade County, the man unlawfully entered the house owned by VA, the owner and custodian of the home with intent to commit the offense of petit larceny.

A New York Criminal Lawyer said the man pleaded not guilty to the charges. He also moved for the waiver of trial before a jury. The court tried him without a jury. During the trial, the prosecutor was able to prove the ownership of the house. But the person who was proved at trial to be the owner of the dwelling house that was burglarized turned out to the sister of the man who was alleged to be the owner of the dwelling house in the information filed against the man. There was then a variance between the allegation in the information and the actual proof offered and admitted into evidence at trial. The difference between the allegation in the information and the evidence adduced at trial is that real property owner alleged in the information was the brother while the evidence presented at trial proved that it was really the sister who was the owner of the dwelling house.

A New York Sex Crimes Lawyer said the accused man appealed his conviction. He claims that his conviction cannot be sustained seeing that what was alleged in the information is so different from the fact which was presented at trial. The only question before the Court is whether or not the variance in the name and identity of the real owner of the house is a ground for setting aside the conviction.

A New York Drug Possession Lawyer said the Court held that the elements of the crime of burglary are: that the accused entered a dwelling house or conveyance; that the dwelling house or conveyance belonged to another; and, that the accused entered the dwelling house in order to commit a crime. All these elements of the crime of burglary must be alleged in the criminal information or indictment and the same elements must be duly proved by evidence during the trial.

The prosecution has duly proved that the accused entered the premises of the dwelling house. The prosecution also proved that the dwelling house belonged to a person other than the accused. The prosecution also proved that the accused entered the dwelling place belonging to another with the intent to commit larceny. The larceny was proven because the television which was taken from the dwelling house was found later by the police in the possession of the accused. The Court held that the crime of burglary was proven and the conviction was proper.

The Court also held that it was sufficient to allege in the indictment or criminal information that the dwelling house was owned by another person, that is, a person other than the accused. Here, the person alleged in the indictment as the owner was a person different from the real owner. Under the existing jurisprudence, the term “owner” may include a person possessing the premises even if he or she is a mere tenant. The Court held that what was important was to prove the fact that the house was owned and possessed by another other than the defendant.

Are you charged with larceny and burglary? You will need representation by a Florida Criminal Lawyer. A Florida Criminal attorney will explain to you what the charges mean. The Florida Criminal Attorneys from Stephen Bilkis and Associates will explain to you what evidence needs to be presented in your behalf. Call, or better yet, visit the offices of Stephen Bilkis and Associates. Speak with any of their Florida Criminal Lawyers and find a lawyer who can assist you in your defense.

The Facts of the Case:

A New York Drug Crime Lawyer said petitioners were charged with breaking and entering with intent to commit a felony, to-wit: grand larceny. At a jury trial, petitioners requested an instruction on breaking and entering with intent to commit a misdemeanor, petit larceny, but this request was denied. Thereafter, the jury found the petitioners guilty as charged and the criminal court sentenced each of them to fifteen (15) years. On appeal, the District Court of Appeal, Second District, affirmed the guilty verdict holding that the proof of guilt was overwhelming and that any error committed by the court's refusal of the requested instruction on the alleged lesser offense was harmless.

The case is now before the court for certiorari.

The Ruling of the Court:

A New York Drug Possession Lawyer said based upon the basic principles of evidence, a verdict cannot stand without proof to support it. As a rule, the accusatory pleading must apprise the defendant of all offenses of which he may be convicted. This means that when the State makes a charge, ex parte though it may be, it is asserting that the defendant is guilty and may be convicted of that offense, all degrees thereunder when the offense is divided in degrees, the attempt to commit the offense, and any lesser offense which is an essential ingredient of the major crime charged; this also means that he may be convicted of any lesser offense, which, although not an essential ingredient of the major crime, is spelled out in the accusatory pleading in that it alleges all of the elements of the lesser offense and the proof at trial supports the charge. The gist is not what the defendant would like to persuade a jury he may be guilty of, but that the accusatory pleading apprise him of all offenses of which he may be convicted.

A Nassau County Drug Possession Lawyer said in the landmark case of Brown v. State, the court held that the proof of the lesser offense necessarily is shown by proof of the greater, e.g., armed robbery which is also obviously proof of an assault which becomes a classic necessarily included offense on which a charge (instruction) must be given. In that case, the proof inheres in the evidence of the armed robbery. However, such greater proof is not always proof of the lesser offense and here now lies the confusion. The present case is illustrative.

A Queens Drug Possession Lawyer said in the case at bar, the only proof presented before the court is the $600.00 worth of liquor, non-depreciable and based on wholesale value and not just wholesale cost. There is no way to reduce the said amount to the less than $100 market value necessary to include the lesser offense of petty larceny. As a rule, market value is the standard. But here, wholesale value, absent contrary proof, sufficiently satisfies the recognized test. Had the evidence admitted of any finding on which the jury might have based a breaking and entering with intent to commit a misdemeanor, petit larceny, which is a proper lesser charge, then a jury instruction thereon should have been given. However, the court finds that the trial judge correctly perceived that such an instruction found no support in the evidence and was therefore inappropriate and would have been an error. The failure to instruct is a harmless error. As repeatedly held, a trial is not a game of roulette and is not one in which all of the numbers have to be played as possible offenses which might have been charged in the information but were not. The rule simply means that the trial judge must instruct (charge) on other offenses necessarily included in the offense charged, but the predicate of the rule in its beginning is that the jurors may convict of such an offense. Certainly there can be no conviction without evidence of such an offense which constitutes proof upon which the conviction can stand. The court fails to perceive any valid distinction as urged by petitioners in the application of the harmless error rule where the alleged lesser offense is claimed to be within the Brown category as necessarily included in the offense charged, and in those cases in which harmless error has been heretofore applied where the lesser offenses were in the Brown category of offenses which may be included. While the harmless error applied by the district court lies to affirm the convictions, the court also holds that there was in fact no error in the lower court’s decision. Thus, the petition for certiorari is discharged.

Experienced New York Criminal Attorneys can be found at Stephen Bilkis & Associates. Our legal counsels like our New York Petit Larceny Lawyers or our New York Grand Larceny Lawyers, and the like, have participated and represented various clients in a number of litigations with complex issues where they have acquired exceptional skills. For our free consultation services, contact us at our numbers or visit any of our offices located throughout the city.

The Plaintiff moves pursuant to CPLR §3212 for an order granting summary judgment as to the issue of the liability on behalf of the Defendant, The Dizzy Lizard, Inc., and directing an assessment of damages to be determined by a jury.

A New York DWI Lawyer said in this criminal action, the Plaintiff was injured in a motor vehicle accident, while he was a passenger in the automobile operated by the defendant, and owned by the co-defendant. Said accident occurred at approximately 1:45 a.m. when the vehicle collided with a train overpass. On the date of the accident, both parties were each 18 years of age. The defendant was arrested and charged with DWI in violation of Vehicle and Traffic Law § 1192.3. Prior to the subject accident, the Defendant was a patron of a tavern located somewhere in New York. As a result of the injuries sustained, the Plaintiff commenced the underlying action against individual defendants, based upon negligence and against the defendant tavern, predicated upon General Obligations Law§§ 11-100 and 11-101. The Plaintiff s instant application seeking summary judgment as to the liability of the defendant tavern thereafter ensued and is determined as set forth hereinafter.

A New York DWI Lawyer said in support of the within application, a New York Drunk Driving Lawyer said that that the record herein conclusively demonstrates that defendant was intoxicated at the time of the accident and that said intoxication was the direct result of the several hours he spent drinking at the tavern. In so arguing, counsel makes particular reference to the annexed police report, which states that defendant was charged with DWI at the time of the accident. Counsel additionally provides various pleadings attendant to a Federal Court action commenced against the tavern by an Insurance, which issued a series of liquor liability insurance policies to the Defendant. The Insurance Company sought rescission of three such policies based upon the tavern’s alleged misrepresentations in the applications for the insurance coverage. Counsel further points to several building violations, in connection to which tavern plead guilty to reduced charges, as well as to pleadings relating to other prior incidents involving the tavern, but which are not related to the within.

A Nassau County DWI Lawyer said the issue to be resolved in this case is a summary judgment should be ordered by the court based on the foregoing.

The Court ruled that It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. To obtain summary judgment, the moving party must establish it's claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the Court, as a matter of law, to direct judgment in the movant's favor. Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation.

If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. A motion for summary judgment is the procedural equivalent of a trial, and when entertaining such an application, the Court is not to determine matters of credibility, but rather is to confine it's inquiry to determining whether material issues of fact exist.

As noted above, the Plaintiff is alleging theories of liability predicated upon the provisions embodied in General Obligations Law §§ 11-100 and 11-101. The Dram Shop Act, codified in General Obligations Law § 11-101, was promulgated by the legislature to create a private right of action which could be instituted against sellers of alcoholic beverages for injuries occasioned by the sale thereof.
Within the purview of these statutes, liability thereunder will attach upon the unlawful selling, furnishing or assisting in procuring of alcohol. The term unlawful is defined in Alcoholic Beverage Control Law as follows: "No person shall sell, deliver, or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to any person, actually or apparently, under the age of twenty-one years" or to "any visibly intoxicated person" While the Alcohol Beverage Control Law defines the term "unlawful", the provisions therein contained do not create an independent statutory cause of action and such actions are rather the progeny of General Obligations Law" At common law, one who provided intoxicating liquor was not liable for injuries caused by the drinker" and rather the drinker was held solely responsible for his or her own actions. Thus, as General Obligations Law are in derogation of common law principles, the statutes must be strictly construed and "be read narrowly and not enlarged beyond [their] borders"

In interpreting the statutory provisions, the Court of Appeals in one case has held that liability under General Obligations Law § § 11-100, "may be imposed only on a person who knowingly caused intoxication by furnishing alcohol to persons known or reasonably believed to be underage" The Court went on to state that "while section 11-101 does not explicitly refer to knowledge, that same requirement must be inferred because the legislative history makes plain that section 11-100 was intended to parallel the Dram Shop Act"

Further, within the particular context of General Obligations Law § 11-101, in order to establish a prima facie case of liability against the tavern, the Plaintiff bears the burden of proffering sufficient evidence that when the bar served alcohol to defendant, it was on notice that he was visibly under the influence thereof. Such evidence is not limited to direct proof in the form of testimonial evidence from an individual who witnessed the alleged intoxicated person at the moment the alcohol was provided, but may include circumstantial evidence to demonstrate the visible intoxication of such individual.
In the instant matter, the Court finds that the Plaintiff has failed to demonstrate his entitlement to judgment as a matter of law. As noted above, the Plaintiff has tendered proof in the form of pleadings attendant to other actions involving the tavern, the police report relevant to the subject accident, as well as limited portions of the depositions of the General Manger of the Defendant bar, and the Plaintiff. However, none of the purported evidence proffered unequivocally resolves the issues relevant herein.

With particular respect to the matter of defendant’s age, the annexed police report, while stating that Mr. Jones was indeed charged with DWI, is not dispositive as to the issue of whether the tavern knew that defendant was underage when he was served alcohol on the premises.

Thus, on the record as currently developed, there clearly exist questions of fact as to whether the tavern knew or reasonably believed defendant to be underage when he was served alcohol at said establishment. Accordingly, an order granting summary judgment as to the issue of the Defendant's liability is inappropriate. As to the issue of defendant’s intoxication, there is absolutely no evidence, direct or circumstantial, proffered by the Plaintiff which establishes that when served alcohol at the tavern, defendant was visibly intoxicated.

Based upon the foregoing, the motion interposed by the Plaintiff, for an order granting summary judgment as to the issue of liability against defendant, the tavern, and setting the matter down for a trial as to the issue of damages is hereby DENIED.

Our New York Drunk Driving Lawyers here in Stephen handled cases involving DWI incidents. If you are a victim, don’t hesitate to call us now and consult to our New York Criminal Attorneys.

The Facts of the Case:

A New York Criminal Lawyer said petitioners were charged with breaking and entering with intent to commit a felony, to-wit: grand larceny. At a jury trial, petitioners requested an instruction on breaking and entering with intent to commit a misdemeanor, petit larceny, but this request was denied. Thereafter, the jury found the petitioners guilty as charged and the criminal court sentenced each of them to fifteen (15) years. On appeal, the District Court of Appeal, Second District, affirmed the guilty verdict holding that the proof of guilt was overwhelming and that any error committed by the court's refusal of the requested instruction on the alleged lesser offense was harmless.

The case is now before the court for certiorari.

The Ruling of the Court:

A New York Criminal Lawyer said that based upon the basic principles of evidence, a verdict cannot stand without proof to support it. As a rule, the accusatory pleading must apprise the defendant of all offenses of which he may be convicted. This means that when the State makes a charge, ex parte though it may be, it is asserting that the defendant is guilty and may be convicted of that offense, all degrees thereunder when the offense is divided in degrees, the attempt to commit the offense, and any lesser offense which is an essential ingredient of the major crime charged; this also means that he may be convicted of any lesser offense, which, although not an essential ingredient of the major crime, is spelled out in the accusatory pleading in that it alleges all of the elements of the lesser offense and the proof at trial supports the charge. The gist is not what the defendant would like to persuade a jury he may be guilty of, but that the accusatory pleading apprise him of all offenses of which he may be convicted.
In the landmark case of Brown v. State, the court held that the proof of the lesser offense necessarily is shown by proof of the greater, e.g., armed robbery which is also obviously proof of an assault which becomes a classic necessarily included offense on which a charge (instruction) must be given. In that case, the proof inheres in the evidence of the armed robbery. However, such greater proof is not always proof of the lesser offense and here now lies the confusion. The present case is illustrative.
In the case at bar, the only proof presented before the court is the $600.00 worth of liquor, non-depreciable and based on wholesale value and not just wholesale cost.

A New York Drug Crime Lawyer said there is no way to reduce the said amount to the less than $100 market value necessary to include the lesser offense of petty larceny. As a rule, market value is the standard. But here, wholesale value, absent contrary proof, sufficiently satisfies the recognized test. Had the evidence admitted of any finding on which the jury might have based a breaking and entering with intent to commit a misdemeanor, petit larceny, which is a proper lesser charge, then a jury instruction thereon should have been given. However, the court finds that the trial judge correctly perceived that such an instruction found no support in the evidence and was therefore inappropriate and would have been an error. The failure to instruct is a harmless error. As repeatedly held, a trial is not a game of roulette and is not one in which all of the numbers have to be played as possible offenses which might have been charged in the information but were not. The rule simply means that the trial judge must instruct (charge) on other offenses necessarily included in the offense charged, but the predicate of the rule in its beginning is that the jurors may convict of such an offense. Certainly there can be no conviction without evidence of such an offense which constitutes proof upon which the conviction can stand.

A New York Sex Crimes Lawyer said the court fails to perceive any valid distinction as urged by petitioners in the application of the harmless error rule where the alleged lesser offense is claimed to be within the Brown category as necessarily included in the offense charged, and in those cases in which harmless error has been heretofore applied where the lesser offenses were in the Brown category of offenses which may be included. While the harmless error applied by the district court lies to affirm the convictions, the court also holds that there was in fact no error in the lower court’s decision. Thus, the petition for certiorari is discharged.

Experienced New York Criminal Attorneys can be found at Stephen Bilkis & Associates. Our legal counsels like our New York Petit Larceny Lawyers or our New York Grand Larceny Lawyers, and the like, have participated and represented various clients in a number of litigations with complex issues where they have acquired exceptional skills. For our free consultation services, contact us at our numbers or visit any of our offices located throughout the city.

The Facts of the Case:

A New York Drug Crime Lawyer said the appellant was charged with the criminal act of breaking and entering with intent to commit a misdemeanor, viz.: petit larceny. The information charged three elements: unlawful breaking, unlawful entry and the intent to commit petit larceny. The jury found appellant guilty of two of the three elements set forth in the accusatory pleading by finding that he had made an unlawful entry with intent to commit petit larceny or entering without breaking with intent to commit petit larceny. Clearly, the verdict found defendant guilty of a crime included within the offense charged by the accusatory pleading.

The Issue of the Case:

A New York Drug Possession Lawyer said the sole issue for the court to resolve is whether one can be convicted of entering without breaking with intent to commit a misdemeanor on a charge of breaking and entering with the same intent.

The Ruling of the Court:

In the landmark case of Long v. State, the court’s ruling is predicated upon the principle that where an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged. In essence, it is a matter of due process; that an accused is entitled to know what he has to defend against. However, a Nassau County Drug Possession Lawyer said the court finds that it must be put in its proper perspective depending upon the statute involved. Under the Long statute, the first alternative is specific in its terms, i.e., the smuggling into a jail of a tool calculated to assist a prisoner in escaping; the second alternative is general, i.e., aiding, by any means whatsoever, a prisoner in his endeavors to escape. A specific charge made under the first alternative, then, would preclude a conviction under the second, absent evidence of the specific tool allegedly smuggled in, because as to the second there was no notice to the defendant that he would be tried under the broad and general provisions thereof. If it were the other way around, however, that is, if the defendant were charged with the second alternative, viz., aiding in the escape endeavors, he could not be heard to complain if the evidence established that he smuggled in a tool used in the escape.

Thus, a Queens Drug Possession Lawyer said due process considerations clearly come into play under the Long statute depending upon which alternative is made out in the charge. However, in the landmark case of Skov v. State or simply the Skov statute, while there are also two ways to commit the same offense, the essence of the charge, to wit: the unlawful entering with the requisite intent, is common to each alternative. Thus, no due process considerations come into play when the charge is made out under the first alternative and the evidence establishes the second. The court held that such, like the conviction in the case at bar, cannot stand.

In other words, the pertinent statutes in both Long and Skov describe two ways in which the same offense can be committed. But there is a distinction between these statutes. Under the Skov statute every element necessary to convict under the second alternative is also among the same elements necessary to convict under the first; whereas, under the Long statute the elements of either one of the alternatives is not necessarily included among the elements required to convict under the other. There are circumstances under which a person might be convicted under the first alternative under the Long statute but not be guilty under the second, and there are circumstances where a person might be convicted under the second alternative of the Long statute but not be guilty under the first. While there are circumstances where a person could be convicted under the second alternative of the Skov statute and not be guilty under the first, there is no way that a person can be convicted of breaking and entering with intent to commit a misdemeanor and not also be guilty of entering without breaking with intent to commit a misdemeanor. The unlawful entry is the gravamen of the offense and that element is present in each alternative.

The court now overrules its decision in Skov, and two other cases.

Here, where one is charged with breaking and entering with intent to commit petit larceny, he is not deprived of due process by being convicted of entering without breaking with intent to commit petit larceny because the charge totally encompasses the manner by which the jury has determined the offense was committed. There is nothing that prevents the state from charging breaking and entering and entering without breaking in separate counts of the same information in a proper case so as to avoid the issue.

Accordingly, the judgment of conviction is affirmed. On other points raised by the appellant, the court finds them bereft of merit.

For experienced representation, contact us at Stephen Bilkis & Associates. Our New York Criminal Defense Lawyers are at your service to assist you with your legal issues. Free consultations are also available at our firm. You may get in touch with us at our numbers or visit our offices located throughout New York City and discuss with our New York Petit Larceny Lawyers, and the like, your legal problems

The defendant was indicted for operating a motor vehicle while under the influence of alcohol, in violation of Vehicle and Traffic Law § 1192 (2) and (3), and vehicular assault in the second degree, in violation of Penal Law § 120.03 (1). A New York Criminal Lawyer said that, in his pretrial omnibus motion, the defendant moved, inter alia, to suppress the results of a blood alcohol test, which the trial court granted to the extent of conducting a joint Dunaway/Huntley hearing.

A New York DWI Lawyer said that, at that hearing, the People adduced the following evidence. On July 28, 2006, at approximately 4:00 A.M., in the City of Poughkeepsie, the defendant drove a pickup truck through a red traffic light and struck a marked patrol car driven by a city police officer. The Officer who was removed from the scene by ambulance and transported to St. Francis Hospital, suffered head injuries and spent one month in an in-patient rehabilitation facility before returning to work six months after the accident, in January 2007. Immediately after the accident, the Patrol Officer observed the defendant, who was still seated in the driver seat of his pickup truck, detected alcohol on his breath, and saw that his eyes were glassy and bloodshot. The defendant told the Patrol Officer that he had consumed one half of a beer and was on his way to a bar when the accident occurred. Because the defendant complained of possible head injuries, no field sobriety test was conducted. The Patrol Officer could not determine at that time whether the defendant was intoxicated. When the ambulance arrived, the defendant exited the truck without assistance and was transported by ambulance to Vassar Brothers Hospital.

A New York DWI Lawyer said the County Deputy Sheriff arrived at the hospital, where the Patrol Officer briefed him on the circumstances of the accident, his observations of the defendant at the scene, and the defendant's statement to him at the scene that he had consumed one half of a beer earlier that night. Approximately 20 minutes later, at 5:04 A.M., the Deputy Sheriff administered a prescreening test called an Alco-Sensor, which indicated the presence of alcohol in the defendant's system. Based upon his observations, training, and experience, the Deputy Sheriff was by then of the opinion that the defendant was under the influence of alcohol. At approximately 6:01 A.M., the Deputy Sheriff placed the defendant under arrest and read him his (DWI) driving while intoxicated warnings, which the defendant indicated he understood.

A Nassau County DWI Lawyer said that, the defendant immediately indicated he would consent to a chemical test, which requires a blood draw, and signed a consent form at 6:04 A.M. At that point, which was approximately two hours after the accident and within minutes of his arrest, the defendant's blood was drawn by a hospital nurse and his blood alcohol content was later determined to be .18%, which is more than twice the legal limit. More than one hour later, the Deputy Sheriff advised the defendant of his Miranda rights, and the defendant, both in writing and orally, indicated he understood those rights and agreed to speak with the Deputy. In response to Deputy Sheriff’s inquiry, the defendant stated that he had consumed a mixed alcoholic drink known as a Long Island iced tea approximately four hours before the accident, and was on his way to a bar when the accident occurred.

The defendant was the sole witness for the defense at the hearing. In his testimony, the defendant stated that he was not advised of his Miranda rights or DWI warnings until a judge, accompanied by police officers and state troopers, arraigned him in his hospital room between 8:00 A.M. and 9:00 A.M. The defendant asserted that it was only at that time that he realized he was under arrest. The defendant further testified that, at the time he signed the consent form for his blood to be drawn, he believed his blood needed to be drawn as part of his medical care, not as part of the criminal investigation.

A New York DWI Lawyer said that, at the conclusion of the hearing, the court denied that branch of the defendant's omnibus motion which was to suppress the results of the blood alcohol content test, finding that the Deputy Sheriff had probable cause to arrest the defendant for driving while intoxicated based on information the Patrol Officer relayed to him, his own observations, and the results of the Alco-Sensor test he had administered to the defendant.

The issue in this case is whether the rebuttable presumption under Penal Law § 120.03 (1) violates the defendant's right to due process.

Penal Law § 120.03 (1) provides that a person is guilty of vehicular assault in the second degree when he or she causes serious physical injury to another person, inter alia, while operating a motor vehicle while impaired or intoxicated and causes that serious physical injury as a result of such intoxication. The statute also provides that proof of such operation and the causation of such serious physical injury raises a rebuttable presumption that the serious injury is the result of such intoxication.
The Court said that, among other arguments, the defendant contends that Penal Law § 120.03 violates the right to due process because of the rebuttable presumption that a person who commits DWI caused the subject accident resulting in serious physical injuries. He further contends that the statute is unconstitutionally vague since it fails to give fair notice to a person of ordinary intelligence of what it forbids and fails to provide clear law-enforcement standards. For the reasons set forth below, we reject the defendant's arguments.

Preliminarily, although the defendant failed to preserve for appellate review his constitutional challenges to Penal Law § 120.30 by not making a timely pretrial written motion to dismiss the indictment on this ground, we reach this issue as a matter of discretion in the interest of justice.
"It is a fundamental requirement of due process that a criminal statute must be stated in terms which are reasonably definite so that a person of ordinary intelligence will know what the law prohibits or commands". The purpose of the requirement is twofold: (1) provide the defendant with "adequate warning of what the law requires so that he may act lawfully," and (2) "prevent arbitrary and discriminatory enforcement by requiring boundaries sufficiently distinct for police, Judges and juries to fairly administer the law"

In 2005, approximately one year before the subject accident, the statutes concerning vehicular assault in the first and second degrees and vehicular manslaughter in the first and second degrees were amended and designated as "Vasean's law," to eliminate criminal negligence as a required element of each of the crimes, and provided that after the People establish that the defendant driver caused serious injury or death, a rebuttable presumption would arise that the serious injury or death was caused by the driver's intoxication, impairment, or use of a drug.

Specifically, as amended, Penal Law § 120.03 provides: "A person is guilty of vehicular assault in the second degree when he or she causes serious physical injury to another person, and operates a motor vehicle in violation of subdivision two, three, four or four-a of section eleven hundred ninety-two of the vehicle and traffic law and as a result of such intoxication or impairment by the use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, operates such motor vehicle in a manner that causes such serious physical injury to such other person.

"If it is established that the person operating such motor vehicle caused such serious physical injury while unlawfully intoxicated or impaired by the use of alcohol or a drug, then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, such person operated the motor vehicle in a manner that caused such serious physical injury, as required by this section."

The defendant contends that the clause "as a result of such intoxication or impairment," coupled with the rebuttable presumption that the DWI caused the serious physical injuries, renders the statute unconstitutionally vague because an individual who was DWI without causing the subject accident nevertheless falls within the parameters of the statute. The defendant notes that although the person in hypothetical may have been DWI in violation of Vehicle and Traffic Law § 1192, he or she was innocent of causing the accident. Yet, under the statute, a rebuttable presumption would exist that the person who was driving while intoxicated committed vehicular assault in the second degree in violation of Penal Law § 120.03 (1).

However, our reading of the statute does not support the defendant's argument. The statute provides, in pertinent part, that the rebuttable presumption that the defendant's intoxication caused the subject accident arises only "if it is established that the person operating such motor vehicle caused such serious physical injury while unlawfully intoxicated or impaired by the use of alcohol or a drug." Thus, if a driver's operation of a vehicle cannot be deemed a proximate cause of the subject accident, then the rebuttable presumption would not arise. We further note that, even if the defendant is correct that the statute would deny due process to hypothetical defendants who may have been DWI in violation of Vehicle and Traffic Law § 1192 but did not cause the accident, we do not reach that issue, as the defendant may not assert a due process challenge contending that the statute is vague as applied to the conduct of others.

In any event, the People's evidence at trial clearly was sufficient to give rise to the rebuttable presumption. The defendant told the Deputy Sheriff that he had consumed a mixed alcoholic drink prior to the accident. Further, approximately two hours after the accident, the defendant's BAC tested at .18%, more than twice the legal limit. Accordingly, the People proved beyond a reasonable doubt that the defendant was per se driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2) and driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3). Additionally, two eyewitnesses, and her passenger, testified that the defendant had a red light as he approached the subject intersection. Neither eyewitness indicated that the defendant slowed down as he approached the intersection. Further, an electrician responsible for maintaining the City's street and traffic lighting, testified that the traffic signals at the subject intersection were fully operational and the system did not indicate any failure alarms, which are automatically generated if two green or two yellow traffic lights simultaneously appeared on both Mill and North Bridge Streets, or if there had been a power dip.. Under the circumstances, the People established beyond a reasonable doubt that the defendant operated a vehicle while intoxicated and that his operation of such vehicle caused serious physical injury to another person.

Accordingly, a rebuttable presumption arose that the defendant's intoxication was the proximate cause of the accident. The verdict demonstrates that the jury rejected the defendant's testimony that he had a yellow traffic light as he entered the intersection and credited the testimony of the Patrol Officer and her passenger. Had the jury accepted such testimony, given the electrician’s testimony that there were no malfunctions of the traffic lights at the intersection; it would have meant that the jury found that the Officer disregarded a red traffic light, thereby rebutting the presumption since the Officer conduct would be deemed an intervening cause of the accident.

Accordingly, the Court held that the judgment is affirmed.

Penal Law § 120.03 (1) provides that proof of operation and the causation of serious physical injury raises a rebuttable presumption that the serious injury is the result of such intoxication. In order to rebut the presumption you will need the representation of a New York Criminal Attorney and New York DWI Attorney at Stephen Bilkis and Associates. Call us for more information.

The Facts of the Case:

On around 18 to 19 of October 2007, at around midnight, the defendant went to a nightclub with his girlfriend “A”, a friend of his girlfriend “B”, and another individual “C”. A New York Criminal Lawyer said after drinking alcohol at the nightclub, the defendant and “C” left and went to a nearby parking lot. According to “B”, defendant did not appear intoxicated at that time; that defendant stated in the parking lot that he lost his shit, presumably referring to drugs, and the defendant became upset. The defendant then went into the trunk of his car and searched for something. Thereafter, the defendant began arguing with his girlfriend. At approximately 3:15 A.M., several witnesses heard gunshots, but no one reported having seen the defendant fire a gun. The defendant then angrily ordered B to leave with his girlfriend. B did and drove the defendant's girlfriend home. The defendant and C then entered the defendant's vehicle, with the defendant driving. When police officers arrived at the parking lot only minutes later, at about 3:20 A.M., the defendant had left, and the officers recovered several 9–millimeter shell casings in the parking lot. At approximately 3:30 A.M., the defendant's vehicle was seen traveling west in the eastbound lanes of the Southern State Parkway at a speed of 70 to 75 miles per hour. According to numerous witnesses, the defendant's vehicle traveled in the wrong direction, from about exit 19 to exit 13, a distance of approximately five miles. According to a witness, the defendant was driving directly at him while changing lanes; that he had to immediately pull his vehicle onto the shoulder to avoid a collision; that the defendant continued driving the wrong way; that he observed the other vehicles on the parkway split apart in order to get away from the defendant; that the defendant was steadily going, not braking.

Another witness, a Police Sergeant, was also driving in the proper direction in the left eastbound lane of the parkway. According to the Sergeant, as he passed exit 14, he observed the defendant's vehicle driving towards him at a high rate of speed which caused him to violently turn his steering wheel to the right to avoid a collision; that the defendant's car came within inches of the Sergeant’s vehicle; that the defendant made absolutely no effort to get out of the way. Near exit 13, the defendant's vehicle, without ever having slowed down, collided with the victim's vehicle, killing the victim instantly and incinerating the victim's vehicle. When emergency services and police arrived on the scene and attempted to remove the defendant from his damaged vehicle, the defendant was agitated and his breath emitted a strong odor of alcohol. The police then arrested defendant, and following his arrest, a blood sample taken from him at 4:49 A.M., just over an hour after the accident, indicated that his blood alcohol content (hereinafter BAC) was 0.19%. When the defendant was arrested, he was then removed from his vehicle, and the police thereafter began conducting an inventory search of the vehicle. The discovery of several 9–millimeter rounds in the trunk, however, transformed the search from inventory to investigatory, during which the police recovered a 9–millimeter semiautomatic pistol, what was later determined to be .395 grams of cocaine beneath the front passenger seat, and 41 rounds of 9–millimeter bullets contained in a partially loaded magazine and a box in the trunk. The gun recovered from the defendant's vehicle matched the shell casings found in the parking lot near the nightclub.

On 16 September 2008, the defendant was found guilty and was convicted of murder in the second degree (depraved indifference), vehicular manslaughter in the first degree, aggravated driving while intoxicated or aggravated DWI, operating a motor vehicle while under the influence of alcohol, criminal possession of a weapon in the second degree, and criminal possession of a controlled substance in the seventh degree, a drug crime. The defendant then appeals from the said criminal convictions. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

The Ruling of the Court:

First, the court finds that there is nothing from which a jury could reasonably infer that the defendant possessed the mens rea necessary for murder in the second degree or depraved indifference: a tragic combination of both awareness and total disregard for the fact that he was driving at high speed the wrong way down the parkway, which was conduct that placed both the defendant and others traveling eastbound on the parkway at grave risk of death. In effect, to convict the defendant of depraved indifference murder, the jury would have to find that the defendant was suicidal. There is no basis for such a finding. Rather, the evidence indicates that the defendant was highly intoxicated and upset with his girlfriend and/or with having lost something in the parking lot near the nightclub.

Moreover, a Westchester County DWI Lawyer said that even accepting the contention that the defendant's intoxication did not render him incapable of forming the requisite mens rea of depraved indifference, there is nevertheless legally insufficient evidence that the defendant actually possessed such mens rea. Without minimizing the defendant's conduct or the tragic results, the court finds that absent from the evidence adduced at trial is evidence, for example, that the defendant intentionally drove in the wrong direction on the parkway at a high rate of speed or continued on his path once he realized he was driving in the wrong direction on the parkway, conduct which could demonstrate an utter disregard for the value of human life. Instead, the evidence demonstrated that the defendant, by reason of his severe intoxication, acted recklessly by failing to perceive that he was driving the wrong way on the parkway. Reckless homicide cannot be elevated into depraved indifference murder merely because the actions of the defendant created a risk of death, however grave or substantial that risk may have been. Circumstances evincing a depraved indifference to human life are not established by recklessness coupled only with actions that carry even an inevitable risk of death. Put differently, in general, a defendant who possesses the mens rea of depraved indifference intends to commit the act that results in the death or injury of another person, but is depravedly indifferent to the grave risk of death or injury to others as a consequence of his or her conduct, i.e., intentionally opening the lion's cage at the zoo; placing a time bomb in a public place; poisoning a well from which people are accustomed to draw water; opening a drawbridge as a train is about to pass over it and dropping stones from an overpass onto a busy highway. In other words, focus on the three statutory factors that distinguish depraved indifference murder, like circumstances evincing a depraved indifference to human life, recklessness and a grave risk of death to another person, should make clear that the statute properly applies only to the unusual case. In sum, there is no valid line of reasoning that could support the jury's conclusion that the defendant possessed the mental culpability required for depraved indifference murder.

Second, the conviction on the count of the murder in the second degree or depraved indifference is against the weight of the evidence. While the court has a responsibility to conduct an independent review of the weight of the evidence, the court must nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor. A medical expert was called to testify on the blood alcohol content of .19%, as a result of the test administered an hour after the defendant’s arrest, which would negatively affect an individual's cognitive abilities, meaning, the thought process, the ability to think clearly and respond to questions; the person's psychomotor functions, such as moving muscles and responding to various stimuli, would be negatively affected; the ability to perceive objects in the environment would be negatively affected; and then the ability to respond to those objects would be negatively affected. The expert testified that an intoxicated person's ability to do “divided attention tasks”, such as driving, is most affected by alcohol. Thus, while driving requires equal attention to steering, acceleration, braking, direction signals, and responding to objects in the environment, an intoxicated person may devote all of his or her attention to only one or two of those tasks. Further, an officer who arrived at the scene moments after the crash described the inside of the defendant's car as having an extremely strong odor of alcohol. After the defendant was removed from his vehicle and placed under arrest for driving while intoxicated, the officer described the smell of alcohol coming directly from the defendant. Nonetheless, the People presented no evidence that the defendant intentionally entered the parkway in the wrong direction and/or continued to drive the wrong way after realizing that he was driving against traffic. Indeed, one witness, an off-duty sergeant for the New York City Police Department, testified that he swerved out of his lane to avoid being hit by the defendant's vehicle, and described the defendant's vehicle as staying in the lane closest to the barrier and not reacting to the sergeant's car as it swerved out of the path of the defendant's vehicle. Such eyewitness testimony is consistent with that of the People's expert, who explained that intoxicated persons experience tunnel vision and lack the ability to concentrate on the numerous tasks required to drive. However, while the People presented the testimony of numerous witnesses who saw the defendant's vehicle traveling in the wrong direction on the parkway, none of those witnesses' testimony established that the defendant understood that he was traveling in the wrong direction. While some witnesses attempted to warn the defendant of his mistake by honking their horns, there is no evidence that the defendant heard those warnings or understood that the warnings were intended for him. Nor did the People's collision reconstruction expert provide any testimony indicating that the defendant may have intentionally driven the wrong way down the parkway. In sum, no credible evidence demonstrated that the defendant deliberately drove his vehicle the wrong way with an utter disregard for the value of human life, and thus acted with depraved indifference. In sum, the weight of the evidence does not support a finding that the defendant, acting with depraved indifference, an utter disregard for the value of human life, knowingly drove the wrong way down the parkway. The defendant may have been the instrument of death but there is no evidence that he knowingly acted with utter disregard for the grave risk of death or serious injury he was creating. Rather, the evidence established that the defendant acted recklessly in driving while intoxicated severely, which led to the tragic death of an innocent person. In other words, the People's evidence established that the defendant acted recklessly, but not that he acted with depraved indifference.

Accordingly, the judgment must be modified, the defendant's conviction of second degree murder must be reduced to manslaughter in the second degree, a lesser-included offense of murder in the second degree, vacate the sentence imposed on that count, and remit the matter to the County Court for resentencing on that count.

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The defendant is appealing a jury conviction that charged him with the crime of carrying a firearm during and in relation to a drug trafficking crime and for possession of a weapon and ammunition by a convicted felon.

Case Background

In July, law officers executed a search warrant on the defendant’s residence. The officers testified that the defendant arrived at his home around 9:45 p.m. and got out of his vehicle and went into the house. Not long afterwards another car pulled up and the defendant came out of the house to talk to the driver of the vehicle. After the driver left the officers executed the search warrant of the property.

A New York Criminal Lawyer said that while inside the house, the officers found several small bags of marijuana in different locations. They recovered $510 and found more marijuana in a decorative tin. Inside the vehicle the officers found a loaded nine millimeter pistol. There was another bag of marijuana found inside the car as well. There were two partially burned joints and un-cashed checks payable to the defendant.

During the trial the defendant’s wife testified that the gun that was found was hers and that she kept it in the vehicle for protection. However, the defendant stated that he had knowledge that the gun was in the vehicle.

Trial

During the trial the jury found the defendant guilty of possession of a firearm and ammunition, possession of a controlled substance, and carrying a firearm in relation to a drug trafficking crime.

Court Discussion and Decision

A New York Criminal Lawyer said the defendant argues on appeal that there was insufficient evidence in the case to support his conviction. However, this argument does not stand up. There was plenty of evidence found for support of his conviction. He was seen driving the vehicle where the gun was located and the vehicle is registered in his name. The defendant has admitted to knowing that there was a firearm in the vehicle as well.

The defendant objected to admitting his prior firearm conviction, but did not object to his prior drug related conviction of being introduced. He now states that allowing the prior drug conviction to be introduced as evidence was an abuse of discretion.

However, because the defendant did not object to this being admitted, the court did not make an error in allowing the evidence of a prior drug conviction to be introduced during trial. The evidence was relevant to the case and therefore was correctly allowed to be used.

After careful review, the court is affirming the decision made in the district court. There were no errors made during the previous trial and all convictions of the defendant are affirmed.

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This case is an appeal from a final administrative order that was made by a school board. The order expelled the appellant from school for possession of marijuana.

Case Background

The principal of the school was notified by a teacher that a student had told her that the appellant, who was a ninth grader, had a marijuana cigarette in the bathroom. The reporting student said that the marijuana cigarette would be with one of three students.

The principal and vice principal went to investigate the reported incident. The vice principal spoke with one of the students and had her empty her purse. She did not have marijuana on her and said that it was either with the appellant or another student. The principal and vice principal went to the classroom where both of the girls were. They escorted the girls to the office. The principal asked the appellant if she had something that she was not supposed to have in school. The appellant responded that she was holding something for someone and she told the vice principal that it was marijuana.

The student then took the joint from her purse and gave it to the vice principal. The vice principal testified at the school board hearing and stated that she was familiar with marijuana and that it was her opinion that the object that was in the appellants purse was a joint. The principal also saw the object and identified it as marijuana.

A New York Criminal Lawyer said the appellant’s mother was called and when she arrived she was told that the appellant was likely to be suspended from school for ten days. An expulsion hearing was recommended. The principal completed a suspension notice with recommendation of expulsion.

A hearing was held in regard to the recommended expulsion of the appellant. The appellant was represented by a lawyer at the hearing. At the end of the hearing the school board stated that the appellant violated one of the rules in the school’s handbook involving possession and expulsion was recommended.

Court Discussion and Decision

The question before the court is whether there was enough evidence for the expulsion of the young student.

A Manhattan Criminal Lawyer said the appellant argues that she was charged with being in possession of what “appeared” to be marijuana, which she claims is not prohibited by the school rules and that there was a lack of evidence introduced at the hearing for the school board’s findings that the appellant possessed marijuana.

The school board points out that the student knew what she was being charged with and they followed the procedures as set forth by the student handbook.

The court finds that the school board was within its rights to expel the appellant. However, the school board must also find an alternative program for the student to attend as they are responsible for this.
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The DEA along with the local Sherriff’s Department started a joint investigation of what was believed to be to be a cocaine trafficking organization. A New York Criminal Lawyer said the investigation focused on a local restaurant and its owner. The investigators believed that the owner of the restaurant was the leader of the organization that purchased powder cocaine and crack as well as marijuana. These suspicions were confirmed when confidential informants made several drug purchases at the restaurant. The owner refused to sell to one of the informants, but his son sold to the informant and the owner watched the transaction take place.

The task force began to accumulate evidence against the owner of the restaurant as well as many of his customers over the years. Several individuals were arrested in the central part of the state for possession of numerous controlled substances and identified the restaurant as where they received the drugs.

After a while participants in the drug ring started to turn on the organization. The first individual told officials that crack cocaine was dealt at the restaurant and the main person was the owner. He told officers that he along with another man, and the girlfriend of the owner worked directly for the restaurant owner. Other people came forward and confirmed this story.

Charges
At the end of the investigation the government indicted the restaurant owner and eleven others on various charges covered in a 14 count indictment. Most of the charges were drug related there was no count of the indictment that specified the amount of drugs that each charged defendant was responsible for.

Many individuals that were on the indictment agreed to plead guilty in exchange for their testimony against the remaining conspirators. There were only five left with charges by the time the case went to trial.

Trial

At the end of the trial the jury found three of the defendants guilty of conspiracy to possess crack cocaine with the intent to distribute. The owner of the restaurant was found guilty of maintaining a place for the unlawful distribution of crack cocaine.

Individual sentencing hearings were held by the trial judge. The owner was found to be responsible for over 50 grams of crack and because he had been convicted twice before on felony drug charges he was sentenced to concurrent terms of life in prison.

Case Discussion and Decisions

A New York City Criminal Lawyer said the owner of the restaurant is arguing that there is not sufficient evidence to support the conviction and the sentences that the trial court set. He states that the state failed to prove that he was laundering money. He also argues that the state did not have enough evidence to prove the drug charges. The other defendants argue the same in regard to the drug charges.

The court has reviewed the matter at hand and it is determined that there is more than enough evidence provided in the case to confirm all of the convictions and sentences that were provided by the trial court. All of the convictions and sentences in the case are upheld.

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