New York Criminal Lawyer Blog

The plaintiff and appellant in this case is William Roger Clemens. The defendant and appellee in the case is Brian BcNamee.

Appeal

The plaintiff in the case is appealing a ruling from the district court. A New York Criminal Lawyer said this court will determine whether or not the defamatory statements that were made elsewhere caused damages to the plaintiff and are sufficient in granting personal jurisdiction over the defendant.

Original Case

Roger Clemens, the plaintiff, moved to Texas when he was 15 during the year 1977. He played baseball in college for the University of Texas and then was drafted to the major leagues by the Boston Red Sox. He played for the Red Sox until the year 1996 when he then signed with the Toronto Blue Jays. It was during his time playing for the Blue Jays where he met Brian McNamee, the defendant. McNamee worked as an athletic trainer for the team. In the year 1999, Clemens left Toronto and went to play for the New York Yankees and in 2000 the Yankees hired McNamee to be an assistant trainer. The two trained together until around 2007.

McNamee was summoned by federal authorities in the summer of 2007. This summons was in regard to the federal investigation of BALCO, a laboratory located in the Bay area that was being investigated for their involvement in the development and the sale of performance enhancing drugs. During his interview, McNamee was told that the Government had enough evidence to convict him of delivering illegal performance enhancement drugs to athletes (drug possession). McNamee was offered immunity for information and during his interview he stated that he had given Clemens performance enhancing drugs in the years 2001, 2000, and 1998. After this interview, McNamee was contacted by the federal authorities again and they requested that he cooperate with the investigation being done by Major League Baseball. In December of 2007 the “Mitchell Report” was released and it included statements from McNamee.

Clemens filed a defamation suit against McNamee in January of 2008 in a Texas State Court. The action was removed to the United States District Court by McNamee and he made the motion to dismiss the complaint on the grounds that there was lack of personal jurisdiction and the failure to state the claim. A Brooklyn Criminal Lawyer said that the defamation action was dismissed from the district court because the focus of the statements made by McNamee about Clemens did not take place in Texas. In addition, the district court also found that if there was personal jurisdiction over McNamee, the statements that he made to the Mitchell Commission were made with absolute immunity in place.

Case Discussion and Verdict

In order for personal jurisdiction against the defendant to be claimed, there must be sufficient evidence provided by the story that maintains the state as the focal point of the issue. While it is agreed that the defendant did have contact with the plaintiff in Texas on numerous occasions, the alleged defamatory statements were not made about the time in Texas.

After reviewing the facts of the case and the initial verdict in the case the plaintiff has not shown enough evidence to provide for personal jurisdiction in the case. For this reason, we rule in favor of the defendant and the initial ruling made by the district court will stand.

Stephen Bilkis & Associates has offices located conveniently throughout the metropolitan area of Manhattan. We offer free consultations to help you through any legal situation that you may find yourself in, whether it involves sex crimes, drug possession or theft. Call us to set up your consultation and let us help you through this somewhat difficult situation.

The petitioner of the case is the Commissioner of Correction of Connecticut, John R. Manson. The respondent/defendant of the case is Nowell A. Brathwaite.

Case Issues

This case involves the issue of whether or not the Fourteenth Amendment, under the Due Process Clause requires the exclusion of pretrial evidence that was obtained by a police procedure that is deemed suggestive and unnecessary.

Case Background

A New York Criminal Lawyer said that in 1970, Jimmy D. Glover, a full time police officer for the Connecticut State Police was assigned a job in the Narcotics Division and went undercover. On May 5th, 1970, around 7:45 pm he went along with Henry Alton Brown, an informant, to an apartment building located in Hartford. The purpose of this visit was to purchase narcotics from a known narcotics (drug possession) dealer, “Dickie Boy” Cicero. Glover knocked on the apartment door and asked for two bags of narcotics. He gave the man two $10 bills and received two glassine bags. Glover was within 2 feet of the individual that he made the purchase from and had a clear view of his face.

After leaving the apartment Glover returned to the station and described the individual he made the purchase from as a “colored man, about five feet, eleven inches, with black hair that was in a short afro style and of a heavy build.” D’Onofrio, who was the police officer that took the description, suspected that this was the dealer and obtained a photograph of Nowell A. Brathwaite, the respondent. Glover identified the man in the photograph as the person he had purchased narcotics from.

The respondent was arrested on the 27th of July and charged in a two count information of the possession and sale of heroin. During his trial, which took place in January of 1971 the photograph that was used by the police department for Glover’s identification of the respondent was received in evidence without any objection from the defense. There was no explanation given by the prosecution as to why a photographic array or a lineup was not used in the identification process.

The respondent was found guilty by the jury and sentences of no less than six and no more than nine years. One year and two months after the trial, the respondent filed a petition of habeas corpus in the United States District Court for the District of Connecticut. The respondent stated that by admitting the identification testimony in his trial he was deprived of the due process of the law that is protected under the 14th amendment. The petition was dismissed, but then reversed on appeal by the United States Court of Appeals. This court must determine whether or not the Due Process Clause in fact does force the exclusion of identification evidence.

Case Result

It is noted that the use of a single photograph for the purpose of identification is an extreme error. However, the court finds that in this case that it was unlikely that Glover misidentified the respondent. A Queens Criminal Lawyer says that they find that the find that the Due Process Clause under the 14th Amendment does not force the exclusion of this type of identification evidence and therefore uphold the initial dismissal of the petition. The respondents original sentencing will stand based on the decision of this court.

Stephen Bilkis & Associates is a law firm with offices located throughout the city of New York. We can sit down with you and discuss any type of legal situation that you may be involved with, whether it be drug possession, sex crimes or theft. You may call any of our offices at any time to set up a time to come in for your free consultation. Our lawyers will work with you directly to ensure your legal matters are handled correctly and efficiently.

On September 30, 1974, three men wearing bandanas on their faces entered the house of a man and rounded up all the people in his house. The three men threatened the man of the house at gunpoint and told him that they will kill his children if he did not open his safe and give them all the valuables he had.

A New York Criminal Lawyer said the man complied and opened his safe. As he was opening his safe, the bandana on the face of one of the three armed men came loose and fell off. The man of the house got a good look at his face. But just the same the man of the house gave the armed men all the cash in his safe, a diamond ring and his coin collection which was worth around $40,000.00. The armed man whose face he saw was the same man who pointed a gun to his head all the while that he was opening the safe.

A month later, the man of the house was summoned by the Nassau police. They asked him to identify one of the armed men, the one whose face he saw, from a line up they had. The man of the house positively identified the armed man whose bandana fell from his face.
The man was indicted for robbery and larceny. During his arraignment his counsel was able to obtain bail for him. After he posted bail, the man left Nassau County for New York City. While there, he contacted a fence he knew so that he could sell the man of the house’s coin collection.

The fence he knew turned out to be an undercover police officer from New York City. They at first spoke on the phone and the fence seemed interested in the coin collection. They agreed to meet at a restaurant. The armed man told the fence that he would call him to make the final arrangements. When the armed man called the fence, the fence, who was an undercover police officer, recorded their conversation.

In that recorded conversation, the armed man described to the undercover cop the entire coin collection. A Nassau Criminal Lawyer said that the undercover police officer was investigating a crime being committed in his jurisdiction in the city of New York not knowing that the evidence he was gathering to prosecute the crime in New York City was also evidence for another crime committed in Nassau County.

During the trial in Nassau County for armed robbery, the tape recording of the conversation between the undercover New York City police officer who was posing as a fence was played for the jury. The armed man objected to the playing of the entire recorded conversation as it was recorded without his knowledge or consent as and it amounted to making a statement without being apprised of his Miranda rights and without the presence of his counsel.
The trial judge denied his motion to suppress the recorded telephone conversation. The armed man was convicted of armed robbery and larceny. He appealed his conviction on constitutional grounds. The only question before the Supreme Court was whether or not the recorded conversation should be suppressed.

The Court held that the rule is well-established in New York that incriminating statements obtained from an accused after he has asked for a lawyer are inadmissible if obtained through a custodial interrogation without his counsel and without a waiver of his rights.

Here, however, the Court ruled that the rule cannot be applied absolutely. The armed man’s statements to the undercover police officer were spontaneous declarations. At the time that the armed man made those statements, he was not under custodial investigation and the undercover New York City officer was not investigating the armed robbery in Nassau County. There was no deliberate attempt to inveigle the armed man to make incriminatory statements, no threats were made and no pressure was brought to bear upon him to make those statements.

The armed man also questions his indictment for armed robbery when no evidence of a gun was ever proffered by the People. And even if evidence was procured that a gun was used in the commission of the armed robbery, there is no proof that the gun was used to forcibly take property of the man of the house for the brandishing of the gun could have been done in the heat of passion.

The Court ruled that possession of a gun while committing a robbery, brandishing it, using it to threaten the man of the house and aiming the gun to the head of the man of the house to make him open his safe and give the armed man the contents of the safe are all evidence from which the reasonable mind of the jury was able to make the inference that the intent of the armed man was to forcibly take the property of the man of the house.

The Court upheld and affirmed the conviction of the armed man.

Are you under indictment for robbery, sex crimes or drug possession? Is the use and possession of a gun during the alleged robbery one of the elements of the crime you are charged with? You need the services of a New York City Gun Crime Lawyer. You need a NYC Gun Crime attorney who can raise a defense for you. You need to call the offices of Stephen Bilkis and Associates and speak to any of their New York Gun Crime Attorneys who can advice you and represent you. Call Stephen Bilkis and Associates today. Meet with any of their NY Gun Crime Lawyers and start building your defense.

The Grand Jury of the Special Narcotics Courts voted an indictment against the accused men charging them with criminal possession of a weapon and conspiracy in violation of the Penal Law. In summary, a New York Criminal Lawyer the court alleges that a confidential informant contacted one of the accused, offering him an opportunity to rob drug dealers of a valuable supply of narcotics and cash. The accused allegedly accepted the informant's offer and engaged the three accused men to be part of the robbery gang. The case detectives instructed the informant to tell the accused men the robbery location. It is alleged that the informant and the four accused men loaded two vehicles with a number of weapons and went to that Bronx location with the intention to commit a burglary and a robbery.

The accused men filed omnibus discovery motions, to which the court responded. The State also supplied the grand jury minutes to the court for in camera examination. After examining the grand jury minutes, the court ordered the parties to submit additional memoranda of law on two jurisdictional questions. To enable the parties to fully brief the issue, the court found that release of certain portions of the grand jury minutes to the parties was necessary to assist the court in making the determination on the motion.

The Crime Investigator testified in the grand jury. In summary, the informant testified that he had continuous conversations with one of the accused; however, his testimony is devoid of any references to where he or his co-accused was located when they had the telephone conversations. Furthermore, it is apparent from the grand jury minutes that none of the face-to-face meetings between the informant and the accused men occurred in Manhattan. The sole reference to Manhattan in the informant's testimony is contained in the informant's recitation of why he was at a certain place at a certain time.

The parties submitted legal memoranda to the court on the jurisdiction question. For the reasons which follow, the court finds that the evidence before the grand jury was insufficient to establish jurisdiction under any theory, and therefore the indictment is dismissed with leave to re-present.

The general rule in New York is that, for the State to have criminal jurisdiction, either the alleged conduct or some consequence of it must have occurred within the state. A Manhattan Criminal Lawyer said that because the State only has power to enact and enforce criminal laws within its territorial borders, there can be no criminal law offense unless it has territorial jurisdiction. Mere thoughts or plans do not meet the conduct requirement of Criminal Procedure Law.

Territorial jurisdiction refers to the power of the court to hear and determine the case, and is distinguished from venue, which pertains to the proper county or place of trial thus territorial jurisdiction goes to the very essence of the State's power to prosecute and may never be waived. The prosecution must prove territorial jurisdiction beyond a reasonable doubt.
An accused has the right under the New York State Constitution to be prosecuted in the county where the alleged criminal conduct was committed, unless the Legislature vests jurisdiction in some other county. The right to trial by jury incorporates the common law as it stood at the time of independence, and includes the right to be tried by a jury of the vicinage, the county where the alleged criminal conduct was committed.

Because of the importance of such right, New York courts have given the jurisdictional exceptions in Criminal Procedure Law called a restrictive interpretation and operation. Trial may be held outside the vicinage only if the Legislature has authorized it in clear and unmistakable terms. Such exceptions to the normal jurisdictional rules are to be applied only in accordance with necessity.

Upon the application of the assistant district attorney in charge of the special narcotics parts appointed pursuant to the plan, one or more grand juries may be drawn and impaneled for a special narcotics part upon the order of the justice assigned to such part, which grand jury may exercise all the powers of a grand jury in the county in which it is impaneled and may in addition exercise its powers with respect to the alleged commission of an offense in any county wholly contained in a city having a population of one million or more involving the sale or crack possession and any other offense that could be properly joined therewith in an indictment.

In other words, a Special Narcotics Grand Jury in New York County may exercise all the powers of a regular New York County Grand Jury. It means that the Special Narcotics Grand Jury, as any grand jury impaneled in New York County, must have geographic jurisdiction over the acts which they are seeking to indict. The Special Narcotics Grand Jury enjoys its expanded citywide jurisdiction only as to those offenses involving the sale or possession of a narcotic drug and any other offense that could be properly joined therewith in an indictment.
The State’s sole theory of geographic jurisdiction was explicitly presented to the grand jury. The entire substance of the Crime Investigator’s testimony before the grand jury on the issue of jurisdiction has previously been set forth. The State concedes that there is no other testimony on the point, although they argue extensively about the reasonable inferences they believe can be drawn from the sparse comments relating to jurisdiction.

In summary, it is uncontested that the sole references to Manhattan in the grand jury minutes, and the asserted basis of the grand jury's New York County jurisdiction, are the numerous phone calls from Manhattan made to the targets and that the targets understood that the drug location they are potentially going to rob was in Manhattan originally. The Crime Investigator's testimony is bereft of any references to any phone calls being made from Manhattan, but he does make a cursory reference to the plan which originally consisted of going to an apartment in Manhattan or in the Bronx with firearms, with guns, and it was to rob sixty kilos of cocaine. The threshold question, therefore, is whether this evidence met the minimal standard required to establish geographic jurisdiction in any New York County Grand Jury, irrespective of whether it happens to be designated a Special Narcotics Grand Jury.

When an accused challenges geographic jurisdiction before trial, the jurisdiction of the county seeking to prosecute must have been established before the grand jury. The indictment does not contain a single count charging sale or crack possession; therefore, the expanded jurisdictional rule of Judiciary Law does not apply. The court therefore begins with the sole basis of jurisdiction asserted in the grand jury, the alleged numerous phone calls from Manhattan which purportedly confer jurisdiction on New York County.

As to the conspiracy counts, special jurisdictional rules apply: geographic jurisdiction as to the conspiracy count is established in the county in which the accused entered into the conspiracy and in any county in which one or more of the overt acts in furtherance of the conspiracy were committed by the defendant or one of the coconspirators. The Criminal Procedure Law provides that an oral or written statement made by a person in one jurisdiction to a person in another jurisdiction by means of a telecommunication is deemed to be made in each jurisdiction.

However, before the court can reach the question of whether Criminal Procedure Law properly apply in the case, it must first determine whether there is competent evidence of phone calls actually made in New York County, and if made, whether those phone calls were made in furtherance of the conspiracy. The analysis is guided by the familiar rules governing the motion to dismiss an indictment for legal insufficiency.

In determining a motion to dismiss an indictment for legal insufficiency, the reviewing court must consider whether the evidence, viewed most favorably to the State, if unexplained and un-contradicted would be sufficient to warrant conviction by a trial jury. Legally sufficient evidence is defined as competent evidence which, if accepted as true, would establish every element of an offense charged. Hearsay evidence does not constitute competent evidence. Pursuant to the Criminal Procedure Law, the same rules which govern admission of evidence at criminal law violation trials apply to grand jury proceedings, unless covered by an exception listed in the Criminal Procedure Law. While geographical jurisdiction is a question of fact and can be reasonably inferred from all the facts and circumstances, the evidence which is presented to the grand jury on geographical jurisdiction must be competent evidence; if the evidence is not competent, no inferences, however reasonable, can rescue the presentation.

The court finds that the scant evidence adduced before the grand jury was insufficient to establish geographic jurisdiction in any New York County Grand Jury. The Special Agent’s testimony regarding the numerous phone calls made to the targets was unacceptable hearsay evidence. The testimony, which the State generously characterized as of a general nature, was utterly devoid of any non-hearsay facts establishing that either party to any conversation was actually present in Manhattan, or that the subject matter of the phone calls was in furtherance of a criminal conspiracy, both essential requirements of the Criminal Procedure Law. There was no testimony that the agent was a party to the conversation or that he was listening to the conversations on another line or on a wiretap, or even that he was with the Crime Investigator or one of the targets at the time they were having the conversation so that he could overhear some of the content. Therefore, his testimony about the phone calls, to the extent that it is credible and in the light viewed most favorably to the State, perforce was based upon someone else's explanation to him of what took place. It is therefore unacceptable hearsay.

Clearly, none of the charges, which relate to burglary, robbery, and weapons possession, involve the sale or possession of a narcotic drug. The State argue extensively that the statute must be read expansively, and urge the court to find that because the accused men’s intended to rob narcotics dealers, their conduct falls within the ambit of the statute. The court, however, cannot endorse such theory. The occupation of the intended victim cannot confer jurisdiction where it does not otherwise exist.
The legislation which led to the creation of the Special Narcotics Courts, and the special jurisdictional rules governing those courts, was motivated by the 1970s crisis in narcotics cases and the way that the numbers of those cases were overwhelming the criminal justice system. Narcotics dealers, like banks, are assumed to have large sums of cash. Robbers victimize sources of large amounts of cash. Jurisdiction cannot rest on such peripheral facts as the occupation of the victim. The indictment is dismissed with leave to re-present to a New York County Grand Jury, to the extent that the State can establish jurisdiction, or, alternatively, for re-presentation before a Bronx County Grand Jury.

The Law is continuously being scrutinized to make sure that justice is being served fairly. If you believe that you are a victim of the criminal law’s unfair judgment, or have been charged with robbery, sex crimes, or drug possession, consult a Bronx County Criminal Lawyer. For your drug-related lawsuits, feel free to contact a Bronx County Drug Attorney at Stephen Bilkis and Associates.

In 1997, officers assigned to the New York City Police Department's Narcotics Division were conducting a short-term undercover operation for the purchase of heroin. A New York Criminal Lawyer said that at midnight in the area of Bronx County, the accused, while acting with two other male individuals, sold a quantity of heroin to an undercover police officer. The accused was arrested and charged by indictment with criminal sale of a controlled substance in or near school grounds and criminal possession of a controlled substance in the third degree. More than a year after the undercover operation, a jury convicted the accused of both offenses.

The court adjudicated the accused, a second felony offender and entered judgment against him, imposing two indeterminate concurrent terms of twenty-two years imprisonment with a mandatory minimum period of eleven years. The basis of the adjudication was a judgment of conviction for attempted robbery, a class D violent felony offense.

The Appellate Division affirmed the accused man’s conviction, but modified his sentence to an indeterminate term of twelve years imprisonment with a mandatory minimum period of six years. The Court of Appeals denied the accused man’s application for leave to appeal.
Subsequently, the accused obtained several additional felony convictions. He was convicted of two counts of bail jumping and sentenced to two indeterminate concurrent terms of six years imprisonment with a mandatory minimum period of three years.

Another judgment of conviction was entered against the accused for robbery, a class C violent felony offense, and criminal sale of a controlled substance. The court imposed two concurrent determinate terms of imprisonment, five years and four years respectively. While incarcerated, the accused obtained yet another felony conviction for promoting prison contraband. A sentence of three years imprisonment with a mandatory minimum period of eighteen months was imposed.

The Drug Law Reform Act was enacted in response to the sentencing policies under New York's Rockefeller Drug Laws. A Queens Criminal Lawyer said such reform was intended to ameliorate the sentences imposed on individuals who had committed Class A–I and Class A–II drug offenses. The Legislature enacted the Drug Law Reform Act, which extended sentencing relief to those convicted of Class B, C, and D drug crime offenses. Under the Drug Law Reform Act, a qualified applicant convicted of a Class B drug crime offense is entitled to a reduced determinate sentence if he is in the custody of the Department of Correctional services; if he has been convicted of a class B felony offense as defined in the article of the Penal Law; if he committed the crime prior to January 13, 2005; if he is serving an indeterminate sentence with a maximum term of more than three years; and if he has not been convicted of an exclusion offense as defined in the Criminal Procedure Law.

The accused is currently in the custody of the New York State Department of Correctional Services and was convicted of criminal sale of a controlled substance in or near school grounds and criminal possession of a controlled substance, both class B felonies. He committed crimes and is currently serving an indeterminate term of imprisonment with a maximum period of six years. The court finds, however, that the accused has been convicted of an exclusion offense as defined in the Criminal Procedure Law, thus rendering him ineligible for resentencing.

Initially, the court notes that the look-back period language, a crime for which the person was previously convicted within the preceding ten years, is far from clear and unambiguous. When considering the meaning of a statute that is less than clear and unambiguous, a court would ordinarily examine its legislative history.

As part of a series of statutory reforms designed to ameliorate the overly harsh punishments handed out to low level drug crime offenders under New York's Rockefeller Drug Laws, the New York Legislature enacted the Drug Law Reform Act. The Legislature enacted the reforms because of the belief that low level drug crime offenders punishments outweighed their crimes and that research suggested better, more humane, less costly alternatives to incarceration existed. Considering the Drug Law Reform Act in its entirety, it is clear that its very spirit is to reduce the sentences of low level, nonviolent felony drug crime offenders. Therefore, it is appropriate to resolve any ambiguity in the language in favor of the more ameliorative, rather than the more punitive, construction.

The courts have generally not accepted an alternative interpretation of the Criminal Procedure Law. As such, the court finds no basis to depart from the reasoning and agrees that the natural reading of the Criminal Procedure Law requires the court to measure the look-back period from the date on which the resentencing application is filed. The accused does not have an exclusion offense.

The law defines a second violent felony offender as a person who stands convicted of a violent felony offense after having previously been subjected to a predicate violent felony conviction. A predicate violent felony conviction must have been a violent felony offense as, for which the sentence must have been imposed before commission of the present felony and not more than ten years before commission of the felony, subject to the tolling provision that exempts any period of time during which the accused was incarcerated.

The accused claims his past robbery conviction is not an exclusion offense because it did not precede his conviction on the instant drug crime offenses. Relying on the language contained in the Criminal Procedure Law that an exclusion offense is a crime for which the person was previously convicted within the preceding ten years, he argues that since the robbery occurred after the commission, conviction, and sentence on drug crime offense, it is not within the ten-year look-back period and, therefore, does not constitute an exclusion offense.

Notwithstanding that the District Attorney neither opposed nor addressed the accused man's claim, the court disagrees.

Since the past judgment of conviction was obtained within ten years of the attempted robbery, the accused is a second violent felony offender. As such, the court finds that the past conviction is indeed an exclusion offense, thus rendering the accused ineligible for the Criminal Procedure Law relief.

The accused has an extensive criminal law violation history. Since his conviction for the drug crime offenses that are the subject of the application, the accused has obtained seven convictions, five of which are felonies. In addition to the past robbery conviction that rendered him a second violent felony offender, the accused was convicted of two counts of bail jumping, criminal sale of a controlled substance, and, while incarcerated, promoting prison contraband.
While in prison, the accused has accrued forty-eight disciplinary incidents, including several violations for fighting, assaults on staff personnel, drug use, harassment and possession of contraband. In fact, during his period of incarceration, the accused has spent 2,197 days, or more than six years, in the Special Housing Unit for disciplinary infractions. Even when enrolled in or attending institutional programs such as the GED and Alcohol and Substance Abuse Treatment, he was repeatedly removed for disciplinary reasons.

Although it is commendable that the accused eventually earned his GED and has improved his reading level, his continued course of criminal conduct, even while incarcerated, and obstreperous institutional behavior hardly demonstrates an attempt to distance himself from past misbehavior or progress in rehabilitation. Accordingly, substantial justice dictates that the accused man's application would nevertheless have been denied, even if it had been considered.

Changes in the Law provide two things to convicted offenders, either hope or more severe punishment but it is generally intended to protect every individual’s rights. If you believe that you should pursue a criminal or drug crime lawsuit, or are involved in a sex crimes charge, contact a Bronx County Drug Lawyer or a Bronx County Criminal Attorney from Stephen Bilkis and Associates. The team of lawyers will make sure that you get what you deserve.

Facts:

A security officer, a retired member of the New York City Police Department which the court takes judicial notice of, at the Long Island Jewish Hospital, was instructed by his security supervisor, via radio transmission, to proceed to a Children's Hospital parking lot. He was told to locate a certain auto reportedly containing a handgun. A New York Criminal Lawyer said he was also informed that the New York City Police Department had been notified and would arrive shortly. When he located the auto, he observed the handgun in a holster on the front seat. He immediately radioed his supervisor who replied that the police will be on the scene. The security officer checked the auto door and found it locked. The defendant himself, a security officer at the Children's Hospital, arrived on the scene and saw the responding uniformed security officer standing by his auto. Defendant, without prodding, told the security officer that the auto was his. He then opened the auto door and gave the gun to the security officer.

Defendant then left the scene. The New York City police arrived within minutes, and the responding security officer reported his findings and handed the gun to the police. Defendant then returned to the scene. A New York City Police Officer asked the defendant if the auto was his; defendant replied affirmatively. The officer then asked defendant if he had a permit for the gun. Defendant replied he did not. The police officer then placed the defendant under arrest. While in a police car on the way to the police station defendant was read his Miranda warnings. He then told the officer that he had gotten the gun down south.
Defendant was charged with possession of a handgun without a permit (Criminal Possession of a Weapon in the Third Degree), a handgun crime.

Parties’ Arguments:

For the prosecution - that any action by the hospital security officer is not subject to constitutional scrutiny under either the United States or New York State Constitutions; that even if the action of the security officer was subject to constitutional scrutiny, that the result should still be a denial of suppression of the gun and statements made to the private security officer and to the New York City Police (both before and after Miranda warnings).
For the defendant - seeks suppression of that gun seized by the private hospital security officer, and certain inculpatory statements made to the security officer and later to the New York City Police; that the seizure of the gun by the hospital security officer, and the pre-Miranda statements made by him to the security officer, and to the New York City Police were made while he was under custodial restraint; that the post-Miranda statement to the city police was improperly obtained, as it was not preceded by a probable cause to arrest.

Issue:
The issue here is whether or not the actions of the private security officer are subject to constitutional restraints.

Ruling:

A Westchester County Criminal Lawyer said that in order to determine the propriety of the seizure of the gun by the hospital security officer and the reception of the statements made in connection therewith (in the hospital parking lot), the court must initially address whether the hospital security officer was acting in a private capacity or as an operative of the Police Department. Such preliminary inquiry is necessary as, generally, statements made to private individuals, or an unauthorized search or seizure by such persons, does not render that evidence inadmissible, at a subsequent law enforcement proceeding.

On the Modern Development of Private Security:

Officials of the private security industry say their services save money and get around "red tape." However, critics of this rapid extension of private security into both the private and public sectors point to less strict training programs for those in private security, as compared to those for official police officers, the general nonexistence of regulation of the private security industry, and the fact that private security officers and personnel are not subject to the same constitutional scrutiny and control as public officers.

The popular press and legal periodicals are now discussing the problems posed by the fear of crime, the proliferation of private forms of security measure to protect against crime, and the fact that society has a legitimate interest in being safeguarded from potential abuses posed by private protectors or enforcers. In spite of this growing interest, very few courts to date have addressed the question whether private security personnel must give Miranda warnings to suspects whom they are questioning, and/or must they observe other constitutional restraints with respect to identification, search and seizure, etc.

On Miranda Safeguards:

No decision more rightly deserves the label "Landmark" than the case of Miranda v. Arizona. Its name echoes daily in almost every criminal courtroom across the United States. It has, without question, drastically impacted law enforcement for the past 20 years.
In summary, it was intended to place realistic teeth into the Fifth Amendment privilege against compulsory self-incrimination. Miranda's main thrust was directed at the use by law enforcement agencies of statements, whether exculpatory or inculpatory, which stem from the custodial interrogation of a defendant, unless there is a demonstration that effective procedural safeguards were used to secure a defendant's privilege against self-incrimination.

On the Application of Miranda - to Private Law Enforcement Personnel:

The Fifth Amendment privilege against compulsory self-incrimination, which the Miranda safeguards were designed to protect, has been very cautiously applied to situations not involving interrogation by official law enforcement personnel.

The court has opined on coordinated private-public law enforcement involving the investigation of a crime or felony incident. Here, the parking lot investigation and response by the hospital security officer did accommodate police objectives. It should be contrasted with the traditional role of protecting hospital property or keeping order within the hospital, etc.

On the Application of Miranda - Tests to the parking lot confrontation:

Having found that the encounter constitutes coordinated law enforcement, which accommodated and furthered police objectives, it becomes necessary to apply Miranda standards to this parking lot confrontation.

The following inquiries must be made: Was the parking lot setting that kind of custodial environment proscribed by Miranda? Was the security officer's single question about the auto's ownership, and defendant's verbal and nonverbal response thereto, exempted from the necessity of Miranda safeguards? Were the limited on-the-scene questions by the New York City Police as to auto ownership and gun permit exempted from Miranda? Was the post-Miranda question and response contaminated?

Before such exploration, it would be useful to recall that Miranda was clearly directed at custodial interrogation, that is, on a case-by-case analysis, where one is in custody, where he is deprived of his freedom of action in any significant way. Miranda was not meant to preclude police from carrying out their traditional investigatory function of investigating crime, including general on-the-scene questioning as to the facts surrounding a crime, and Miranda did not in any way bar volunteered statements of any kind.

The sole question asked by the hospital security officer regarding the auto's ownership was made openly in an on-the-scene setting, i.e., a hospital parking lot open to the public. Such type of confrontation does not approach the custodial environment or atmosphere envisioned by Miranda.

Further, the limited routine questions, although having the potential of producing an incriminating statement from a suspect, does not appear to be an interrogation as that term was addressed in Miranda.

Defendant's affirmative response concerning the auto's ownership and his opening of the car and his turning the gun over to the security officer, for whatever assigned reason, whether defendant was naive or trying to curry favor or understanding, etc., appears to have been voluntarily made and thereby exempted from Miranda requirements.

In summary: the parking lot setting was not of a custodial character; the security officer's inquiry was of a routine investigatory nature; and the defendant's response was voluntarily made (the court notes that the defendant himself was a security guard at the same hospital). Defendant should have been aware of the lack of custodial restraint concerning the confrontation in the parking lot, as he was allowed to leave the parking lot scene prior to the arrival of the city police.

For the purpose of determining when Miranda safeguards are required, i.e., when a custodial setting is in effect, which deprives freedom of action in any significant way, it is not a suspect's objective belief that is determinative but that of the perverbial reasonable man, innocent of any crime; what he would have thought had he been in the suspect's shoes. In applying this test, the court concludes that defendant's contention of being under custodial restraint was not substantiated by the facts, nor by what a reasonable man, innocent of any crime, would have thought.

On the Pre- Miranda Statements made to the Police:

On defendant's parking lot statements to the New York City Police, the court, with respect to statements made to the private security officer, also finds that the limited and routine inquiries and responses thereto are exempt from the necessity of Miranda safeguards.

When the New York City police arrived on the scene, they were handed the gun by the security officer. The New York City Police Officer asked the defendant the following questions: Was the auto his? Was this his handgun? Did he have a permit for the gun? The questioning represents routine investigative inquiries necessary in ascertaining facts.

According to the court, the inquiries are specifically exempted from Miranda requirements. Miranda excludes "general on-the-scene questioning as to facts surrounding a crime or other questioning of citizens in the fact finding process". Defendant's responsive on-the-scene statements were the product of a routine on-the-scene fact-finding inquiry. Until defendant's responses were made, he was not in custody and any of his statements were voluntarily made. The court notes that the officer, upon receipt of affirmative replies to his routine inquiries, arrested the defendant, he placed him in the police car and read him his Miranda safeguards.

Defendant's statement, after receiving his Miranda warnings, about having gotten the gun down south, does not seem improper or contaminated in any way as it was preceded by probable cause to arrest.

On the Seizure of the Gun by a Private Security Officer:

Here, the hospital security officer was involved in a coordinated law enforcement objective with the New York City Police and, therefore, his behavior must stand the muster of constitutional scrutiny. The court must now examine the defendant's turning over of the gun to him.

On the issue concerning the voluntarily made statements, etc., the court concludes that the seizure of the gun from the auto in the parking lot after the car was opened by defendant, it was made with defendant's full consent, the consent to the search and seizure by the security officer was given fully and voluntarily in all, and the seizure by the security officer was made incidental to defendant's lawful arrest by the police.

In conclusion:

Under circumstances evidencing a simple and brief but coordinated police-private investigation venture, involving hospital security officers and the New York City Police Department, the court concludes that the action by the hospital security officer should be subject to federal-state constitutional scrutiny.

Even though the action is found subject to constitutional scrutiny, it is determined by a showing of clear and convincing evidence that the seizure of the gun by the hospital security officer was not improper but rested upon defendant's consent freely and voluntarily made and was incidental to a lawful arrest made shortly after seizure by the New York City Police. It is further determined, beyond a reasonable doubt, that the limited on-the-scene investigatory questions (one by the security officer and three by the New York City Police) and defendant's responses thereto, were voluntarily made within the meaning of the rules and were not made in a custodial setting or under other circumstances requiring the administration of Miranda warnings. Further, that the post-Miranda question and response was properly made and was preceded by a probable cause to arrest.

Henceforth, the motions to suppress physical evidence and statements are denied.

To know more of the legal nuts and bolts on arrests involving Miranda issues, get in touch with a Queens County Arrest Attorney. Enlighten yourself of the legal remedies available in these types of situations by seeking legal advice with a Queens County Criminal Attorney. Whether you have been charged with theft, drugs or sex crimes, contact Stephen Bilkis & Associates for the assistance you need and have a free consultation with our lawyers.

Defendant allegedly fired a handgun at two individuals, who just prior to his firing, had fired a handgun at him causing him serious physical injury; handgun crimes.

Defendant was charged with two counts of Criminal Possession of a Weapon in the Second Degree and one count of Criminal Possession of a Weapon in the Third Degree for.
Subsequently, a New York Criminal Lawyer said the defendant requested that the defense of justification be charged and that the presumption not charged. Both requests were denied.

The defendant argued that the jury should be instructed that the defense of justification could negate the fourth element of the crime of Criminal Possession of a Weapon in the Second Degree, i.e., that the defendant possessed the loaded firearm with the intent to use it unlawfully against another.

The Court of Appeals has made it perfectly clear in in its rulings that the defense of justification is inapplicable to the crime of Criminal Possession of a Weapon in the Second Degree. The court held that justification does not negate a particular element of the crime charged and that because possession of a weapon does not involve the use of physical force, there are no circumstances when justification can be a defense to the crime of criminal possession of a weapon. The rationale was that a person either possesses a weapon lawfully or he does not and he may not avoid a criminal or felony charge by claiming that he possessed the weapon for his protection. Justification may excuse unlawful use of the weapon but it is difficult to imagine circumstances where it could excuse unlawful possession of it.

There is no doubt that justification is not a defense to the charge but it implies that if a handgun is fired in self-defense, that fact does not counteract the element of the intent to use the handgun unlawfully against another. A Queens Criminal Lawyer said the result would be that a defendant would not be permitted to argue that he did not intend to use the handgun unlawfully even though he responded with deadly physical force to the use of deadly physical force against him.

However, there is another language in the court’s ruling which would indicate to the contrary, viz.: First, intent to use and use of force are not the same, and justification, by the very words of the statute is limited to the latter; Second, it does not follow that because defendant was justified in the actual shooting of the weapon under the particular circumstances existing at that moment, he lacked the intent to use the weapon unlawfully during the continuum of time that he possessed it prior to the shooting. Whether the People established that defendant possessed the weapon during that period 'with intent to use it unlawfully against another was a question for the jury to determine.

The "continuum" referred to comports with the conclusion in another case decided by the court; the fact that the jury found that the shooting of the victim was justified under the circumstances at that time, by resort to the presumption, did not mean that the defendant lacked the intent to use the handgun unlawfully during the approximately two to three week period prior to the firing of the weapon at the victim.

Here, the indictment in each of the two counts charged the defendant with firing his handgun at a different named individual, so the People were precluded from using the "continuum" theory, and the defendant could properly argue that as to each victim he did not possess the handgun with the intent to use it unlawfully against that particular victim, as he was defending himself. Such claim does not equate with the defense of justification, as the subjective and objective elements mandated by court rulings, are not involved, nor is the duty to retreat relevant. Therefore, although the defense of justification cannot be charged to the jury, this avoidance of criminal liability is still available to the defendant.

On defendant's second argument that the presumption did not apply because the two individuals who were fired upon by the defendant were named in the indictment, although there is no decision directly addressing this issue, all of the cases in which a defendant is charged with assaultive crimes involving a named victim, together with the crime of criminal possession of a weapon in the second degree, have referred to the presumption and by implication sanctioned its use in these situations. A case decided by the court is particularly illustrative, because, there, while reference was made to the presumption, it was also found that the requisite intent to use the weapon unlawfully could be inferred from the circumstances surrounding the shooting. That is the same situation in the herein case.

Henceforth, the refusal to instruct the jury on the defense of justification and the instruction on the statutory presumption were proper.

For the best criminal defense attorney, contact Stephen Bilkis & Associates. Have a free consultation with our New York Criminal Lawyers, whether you have been charged with theft, drug possession or sex crimes. Speak with our NY Possession of a Weapon Attorneys if you are involved in a similar situation as the above. We have trained our legal teams intensely by exposing them in litigations of various kinds thereby acquiring skills unique only to those well motivated and brilliant lawyers. With us, you are in good hands.

On 9 August 2003, an officer, formerly a detective with the Town of Glenville Police Department in Schenectady County, received a report that a local McDonald's restaurant had been robbed by a man brandishing what appeared to be a handgun and an axe; a handgun crime. That information was distributed to other law enforcement agencies, including the State Police. A New York Sex Crimes Lawyer upon learning of the robbery, a police officer (the officer), who was on patrol with his partner, contacted another officer, a senior investigator with the State Police, who then instructed the officer to set up surveillance on defendant's residence and, if defendant appeared, to execute a "felony stop" utilizing extreme caution to ensure officer safety.

The police officer and his partner took up position nearby and, as defendant rolled through a stop sign en route to his residence, he identified defendant, whom he described as a "very distinctive looking individual," as the operator of the pickup truck in question to which the GPS tracking device previously (and validly) had been affixed. The police officer and his partner pulled in behind defendant in his driveway and, as defendant was exiting his truck, drew their weapons, ordered defendant from the vehicle and down to the ground, handcuffed defendant and placed him in the back of their marked police vehicle. A New York Sex Crimes Lawyer said numerous police officers responded to the scene, including the senior investigator, who instructed another investigator to access the GPS tracking information. While waiting for this information, the police officer observed an axe and a bag of clothing, in plain view, in the bed of defendant's pickup truck.

The GPS tracking information revealed that defendant's pickup truck had been in the vicinity of the McDonald's restaurant at the time of the robbery in Schenectady County; the truck then returned to the Town of Clifton Park, Saratoga County and made a brief stop on Maxwell Road, where defendant apparently was employed, before proceeding to defendant's residence.

Thereafter, defendant was placed under arrest, roughly 35 minutes after he had been detained by the police officer and his partner and transported to the State Police barracks in Clifton Park, where he received his Miranda warnings.

Defendant's vehicle was towed to the State Police barracks, where the officer photographed the axe and clothing visible in the bed of the pickup truck. The officer and others then separately brought two McDonald's employees out to view the axe, each of whom identified it, based upon a distinctive marking on the blade, as the axe they had seen during the course of the robbery. Subsequently, a search warrant was applied for and obtained authorizing a search of defendant's vehicle and place of employment, the validity of which defendant does not challenge, and a black knit ski mask, a black pellet .177 caliber handgun and a quantity of currency were among the items recovered.

Defendant was charged in an eight-count indictment with various theft-related crimes following the August 2003 armed robbery of a McDonald's restaurant in Schenectady County.
A Nassau County Sex Crimes Lawyer said the defendant pleaded guilty to robbery in the first degree, without waiving his right to appeal, and was sentenced to 20 years in prison and five years of post-release supervision, after the County Court denied his request for a Mapp/Dunaway hearing.

Upon defendant's initial appeal to the Court, decision was withheld pending completion of a Mapp/Dunaway hearing to further develop the record regarding, among other things, the circumstances surrounding the application for a search warrant authorizing the installation of a global positioning system (hereinafter GPS) tracking device on defendant's vehicle and that of his live-in girlfriend, the execution thereof and the manner in which the physical evidence sought to be suppressed was recovered.

A Queens Sex Crimes Lawyer said based upon the evidence adduced at the hearing, the court concluded that the search warrant authorizing the placement of the GPS tracking device on defendant's vehicle was valid. However, as to the circumstances surrounding defendant's arrest, the manner in which certain physical evidence was seized and the admissibility of defendant's statements to law enforcement officials, the court again concluded that the record had not been sufficiently developed, withheld decision and remitted the matter to County Court to conduct an appropriate hearing.

The aforesaid hearing has been completed; thus, the defendant's appeal.

The crux of defendant's argument on appeal is that he was under arrest from the moment the officer and his partner confronted him in his driveway with their weapons drawn, that there was no probable cause to arrest him at that point in time and, therefore, any subsequent statements made by him or physical evidence seized constitute fruit of the poisonous tree and must be suppressed.

Defendant does not dispute that the officer possessed a reasonable suspicion that a crime had been committed and, therefore, was authorized to forcibly stop and detain him in the first instance. The question before the Court is whether that investigatory stop ripened into a full-blown arrest. Resolution of this inquiry, in turn, centers upon whether a reasonable person, innocent of any crime, would have believed he was arrested if he was in the defendant's position.

Contrary to defendant's assertion, the propriety of an investigatory stop does not hinge upon the precise words or actions employed. Neither the fact that the troopers drew their weapons nor the fact that defendant was handcuffed is dispositive of whether defendant's detention was elevated into an arrest. Indeed, police officers who find themselves in a rapidly developing and dangerous situation presenting an imminent threat to their well-being must be permitted to take reasonable measures to assure their safety and they should not be expected to await the glint of steel before doing so. An investigatory stop may be upheld if the authorities knew that a crime actually had been committed, the total period of the detention was brief, the police diligently pursued a minimally intrusive means of investigation likely to confirm or dispel suspicion quickly, during which time it was necessary to detain the defendant and there is no proof of significantly less intrusive means available to accomplish the same purpose. In the court’s view, that standard was met here.

The testimony at the suppression hearing established that the officer knew that a crime, an armed robbery, had occurred. The officer also knew that defendant had a prior history of and currently was under investigation for committing similar crimes and that the suspect in this particular robbery displayed what appeared to be a handgun. Defendant was detained in his driveway for approximately 15 to 20 minutes before the officer arrived and observed the axe in the bed of the pickup truck, and an additional 10 to 15 minutes elapsed before he obtained the information from the GPS tracking device placing defendant in the vicinity of the robbery, resulting in a total detention of 30 to 35 minutes. The record further reflects that the senior investigator diligently pursued the retrieval of the GPS tracking information which, in turn, quickly confirmed the troopers' initial suspicions. Finally, there is nothing in the record to suggest that the troopers could have both responded to the developing situation and safely ascertained whether defendant was involved in the crime under investigation without detaining defendant in the fashion that they did, particularly considering that they had knowledge of defendant's violent criminal history, his previous escapes from custody and his prior stated intention to use a firearm against police officers.

Given the facts, the court cannot say that the mere pat-frisk of defendant undertaken at the scene was sufficient to dispel the troopers' concerns for their safety and/or neutralize the very real threat that defendant posed to them. Notably, neither the officer nor his partner searched defendant's vehicle at the scene and, therefore, could neither rule out the presence of a weapon therein nor, without handcuffing and physically restraining defendant, ensure that he did not have access thereto.

Simply put, the record reveals that the State Police conducted a lawful investigatory detention, fully supported by reasonable suspicion that defendant had been involved in a violent crime, and this detention was not transformed into an arrest when the troopers ordered defendant out of his vehicle, placed him in handcuffs, and secured him for approximately 30 minutes, since each of these actions was justified by the particular exigencies involved in the investigation.

Henceforth, as defendant's arrest was supported by probable cause, his suppression motion was properly denied. The court need not address defendant's fruit of the poisonous tree claims. The judgment of conviction is affirmed.

Stephen Bilkis & Associates is a law firm with highly trained, experienced and skilled legal counsels. We offer free legal consultations with our legal experts consisting of New York City Criminal Lawyers such as our NYC Arrest Attorneys, NYC Possession of a Weapon Attorneys, among others. Your best interest is our ultimate goal.

A man was charged for attempted murder in the second degree, assault in the first degree and criminal use of a firearm in the first degree. The charges were an incident which happened one evening at the corner of an avenue. A New York DWI Lawyer said the complainant together with another friend was approached by the man with his two companions. The discussion among them about the recent theft of the bicycle escalated into a heated argument at which the man told the complainant to mind his own business. The complainant hit the man once, whereupon the man took his gun out of his trench coat’s pocket, pointed it at the complainant’s face and fired. The complainant turned his head away from the shot and the bullet entered his left temple, lodging outside the brain case, where it remains. As the complainant ran from the scene seeking transportation to the hospital, the man held onto the gun and also left the area.

After a non-jury trial, the man was convicted of assault in the second degree and criminal possession of a weapon in the third degree. He was sentenced to consecutive indeterminate terms of imprisonment of two to six years and one year eight months to five years. However, the man moves to set aside the sentence on the grounds that consecutive sentences were unauthorized and illegally imposed.

Consequently, the man was acquitted of the charges of attempted murder, assault and criminal use of a firearm but was found guilty of the lesser-included crimes of assault in the second degree causing physical injury to the complainant and criminal possession of a weapon in the third degree having the gun in his coat pocket when he arrived at the scene and when he left the scene.

The man contends that his consecutive sentences must be leaved because the law mandates concurrent sentences for the assault and weapon possession convictions. A New York DWI Lawyer said the district attorney then concedes error and agrees with the man's contention that the consecutive sentences should be vacated, but urges the court to resentence the man to concurrent terms of 2 1/3 to 7 years, the maximum for a class D felony. The concession, as well as the man's argument, is rejected.

Based on records, the criminal possession of a weapon in the third degree includes that an individual knows that he is in possession of a loaded handgun. Further, the assault in the second degree includes an intent to cause physical injury, causes such injury and by means use of a deadly weapon. In addition, the penal law provides that sentences must run concurrently with each other where the underlying offenses were committed such as through a single act or through an act at which in itself constituted one of the offenses and also was a material element of the other.

The possession of the gun and assaulting the victim were not two crimes committed through a single act. The assault, occurring in an entirely separate factual scenario and with distinct, briefly overlapped the continuing crime of unlawful possession of a loaded gun. Since it was distinct in fact, spatially and temporally, it is distinct in law.

Consequently, apart from the technical distinctions posed that it is bad policy to give a free ride to a man who has been unlawfully carrying around a loaded concealed handgun, the crime was completed long before the victim was shot in the head. Indeed, a Nassau County DWI Lawyer said the two crimes are entirely distinct and severable. The assault could easily have been committed without concomitantly committing the crime by use of a licensed handgun or by a police officer.

As a result, the court finds the man’s motion to set aside the consecutive sentences and resentence him to concurrent sentences is denied.

There are times that a simple conversation can lead to argument causing worst situation. Whenever you get involved in a crime either you become the victim or the accused, ask help from the NY Criminal Lawyer. If you’ve been involved in possession of a weapon and you want assistance to lighten your conviction, call the NY Possession of a Weapon Lawyer at Stephen Bilkis and Associates.

The Facts:

Defendant, his brother, and another man entered the house of a woman and robbed her at gunpoint. A New York Criminal Lawyer said the woman identified defendant as the one who wielded the gun during the robbery. A police officer was on patrol when he saw three men run out of the woman’s house, followed by her screaming for help. The officer gave chase and managed to arrest the brother, who was found to have a loaded revolver in his front pocket. The brother provided defendant's name and stated that the defendant had placed the gun in his pocket while they fled the woman’s residence.

Thereafter, defendant was arrested at his home. Upon arrest, defendant stated that the arresting officers got nothing on him and that they got the gun of his brother.
The seized revolver was tested and found operable.

Defendant presented evidence to show that it was not him but a third man who displayed the gun during the robbery and then placed it in his brother's pocket.

Defendant was charged as principal and accomplice on six counts: 3 counts of robbery in the first degree – forcibly steals property armed with a deadly weapon, used or threatened use of a dangerous weapon, and displayed what appeared to be a handgun, respectively; 1 count of robbery in the second degree – forcibly steals property aided by another person actually present; grand larceny in the third degree – steals property taken from the person of another; and criminal possession of a weapon in the third degree – possession of a loaded firearm, a handgun crime or felony.

Defendant was convicted on 1 count of robbery in the first degree, 1 count of robbery in the second degree and criminal possession of a weapon in the third degree. He was acquitted on the 2 counts of robbery in the second degree.

Defendant moved to set aside the guilty verdicts as repugnant to the acquittals on the 2 counts of robbery in the second degree.

A New York Criminal Lawyer said the jury had been instructed not to reach a verdict on the grand larceny charge if they convicted on any of the first four counts of robbery and criminal possession, thus, no claim of repugnancy was made on the basis of that differing result.

The Supreme Court ruled that there was no repugnancy between the verdicts on the robberies but that a guilty verdict on count criminal possession was repugnant to acquittal on the 2 counts of robbery in the first degree. The trial court reasoned that each of the robbery counts involved different elements so that one could be found guilty or not guilty on the various charges without any inconsistency. However, that court continued, it is illogical to acquit on the 2 counts of robbery in the first degree, but finds that the defendant possessed a loaded handgun at the time.

Consequently, the jury's verdict was sustained except as to criminal possession, which was set aside.

The Appellate Division unanimously affirmed the decision, without opinion.

On appeal, defendant argues that the jury's acquittal on the two counts of robbery in the first degree, when considered with the conviction on the charge of criminal possession, must have been based on a determination that no "forcible stealing" occurred; that the verdicts on 1 count of robbery in the first degree and 1 count of robbery in the second degree would have to be rejected as an essential element of each crime would have been negated.

The Ruling:

The court finds that the defendant's argument is not persuasive.
The problem of repugnant, or inconsistent, verdicts has long plagued the common law. Many jurisdictions precluded any judgment of conviction if the verdicts were inconsistent. A New York Sex Crimes Lawyer commented that American courts have divided on the question, with the majority accepting that the conviction is valid, albeit inconsistent.

Whether verdicts are described as "repugnant" or "inconsistent" is substantively inconsequential and so the two terms are used interchangeably here. The critical concern is that an individual should not be convicted for a crime on which the jury has actually found that the defendant did not commit an essential element, whether it is one element or all. Allowing such a verdict to stand is not merely inconsistent with justice, but is repugnant to it.

The genesis of repugnancy problems lies in the submission to the jury of alternative theories of guilt, in the form of different counts, based upon the same evidence. The problem often occurs when the jury convicts the defendant on one count and acquits on another, but the verdicts are illogical when viewed in light of the proof adduced. A New York Drug Possession Lawyer said that he difficulty stems from the jury's implicit finding that the essential elements of one crime were proven, while one or more of the same elements were not proven for the other crime.

Under the rules, there are two approaches for determining whether jury verdicts are repugnant. First, the court would review the record in toto so as to consider all the evidence and discover the underlying basis of the jury's determination, whereupon the reviewing court can determine the logic or illogic of the verdicts and remedy the repugnancy when it exists. Second, looking to the record only to review the jury charge so as to ascertain what essential elements were described by the trial court; then, the alleged inconsistent verdicts will be harmonized on the basis of the jury charge. Under this approach, a conviction will be reversed only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered.
There is a compelling policy reason for preferring the second method of analysis. The first approach, by its very nature, requires the court to intrude into the jury's deliberative process by speculating on how the jury perceived and weighed the evidence. The court's reluctance to do so is generally reflected by limiting attacks on jury verdicts to showing improper influence, while excluding for purpose of impeachment "proof of the tenor of deliberations". The problems of second-guessing are compounded by the possibility that the jury has not necessarily acted irrationally, but has exercised mercy. When the jury has decided to show lenity to the defendant, an accepted power of the jury, the court should not then undermine the jury's role and participation by setting aside the verdict.

Hence, the record should be reviewed only as to the jury charge. Even that review of the jury charge will be restricted in its scope. It does not contemplate a consideration of the accuracy of the charge. The instructions to the jury will be examined only to determine whether the jury, as instructed, must have reached an inherently self-contradictory verdict.

Here, defendant's convictions for robbery can be affirmed only if there was a basis for distinguishing among the various "weaponry" elements of the 3 counts of robbery and criminal possession. The instructions to the jury closely matched the basic definitions provided by law. The only material discrepancy was that the court did not explain that a conviction on the sixth count would be inappropriate unless the jury found that the gun was operable. Once deliberations begin, the jury may freely reject evidence and exercise its mercy function. It could find, however illogically, that the gun's capability to fire was not proven. Not having been instructed that the capability to fire is also an essential element of the possession charge, there would be no inherent inconsistency in the acquittals on the 2 counts of robbery in the first degree, both of which require a finding of operability, and the conviction on criminal possession.

As each count is treated separately with the varying burdens and degrees of proof being taken into consideration, there is no incompatibility between the verdicts on the issue of operability. In considering the 2 counts of robbery in the first degree, the jury could conclude that the prosecutor failed to prove beyond a reasonable doubt that the gun was capable of firing, and therefore acquit. The jury could also conclude without self-contradiction that the People had carried its burden in proving that defendant displayed what appeared to be a handgun, necessary to 1 count of robbery in the second degree, but that defendant had failed to prove by a preponderance of the evidence that it was inoperable.

In terms of the essential elements of the underlying charges, the verdicts on 1 count of robbery in the first degree and criminal possession are inconsistent when viewed in light of the convictions on another count of robbery in the first degree and robbery in the second e. Implicit in the robbery convictions was a finding that defendant forcibly stole property. The acquittal on the first count of robbery in the first degree, then, would require that the jury concluded that the prosecutor failed to prove that the gun was either loaded or operable. Thus, a conviction on criminal possession would be legally inconsistent as the jury would have found that the gun was loaded and operable. However, as noted, the jury was not adequately apprised of the legal elements necessary to support a conviction on criminal possession. Henceforth, no actual inconsistency has been presented.

Accordingly, defendant was not entitled to dismissal of the robbery counts.

In addition, defendant argues error to the jury instructions. However, defendant admittedly failed to object to the instruction at trial. Consequently, that issue has not been preserved and the court cannot rule on it.

In all, the order of the Appellate Division is affirmed. When there is a claim that repugnant jury verdicts have been rendered in response to a multiple-count indictment, a verdict as to a particular count shall be set aside only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury. Review of the entire record in an attempt to divine the jury's collective mental process of weighing the evidence is inappropriate.

For assistance with issues similar to the above, contact a New York City Criminal Lawyer at Stephen Bilkis & Associates. We provide free consultations with our legal experts. A New York City Possession of a Weapon Lawyer from our firm is willing and ready to assist you with your legal problems.

A man was charged with robbery in the first, second and third degrees, grand larceny in the fourth degree, criminal possession of a weapon in the fourth degree and unlawful possession of marihuana . A New York Drug Crime Lawyer said that all proceedings have been completed and the case was sent to the Court for trial.

The charges stems from an incident in which the complainant was robbed with a knife. The knife allegedly used by the man during the said incident was not recovered. At a pre-trial conference, the jury requested the court's permission to present evidence that approximately two weeks prior to the occurrence which comprises the charges in the instant case. It was a police officer who observed the man in possession of a knife which is similar to the description given by the complainant about the knife used in robbing.

A New York Drug Possession Lawyer said the Supreme Court ruled that the testimony relating to the observation of the knife would be admissible at trial on the issue of identity and to complete the narrative. The man then claimed that the observation of the knife was the result of improper interference with his liberty by the police. An evidentiary hearing was held and the police officer was the only witness at the hearing. The court then found his testimony to be credible and made findings of fact and conclusions of law.

At the hearing, the police officer alleged that he was assigned to the intelligence division of the 48th precinct. He had also received numerous narcotics complaints from several locations in the area known as a drug prone location. Several complaints involving the sale of crack cocaine and heroin had also been received relating to a social club at the intersection. He further stated that when he and his partner approached the said corner with plainclothes and driving an unmarked police vehicle, they noted that several persons were congregating on the corner. As the police vehicle approached, one of the people on the corner leaned over and whispered something to the man who immediately took two steps back and runs and turns to the corner heading southbound. As he got closer the corner, the man turned and ran.

The officers followed the man and abruptly stopped the car next to the man within several feet of the corner. Their intention was to find out what he was running for. The man turned and looked at the police officers. When the officer yelled and asked why he was running, the man did not respond. The man stopped running and appeared to crouch down slightly behind a parked car and his hands looked like they were close to his jacket pockets. The officer didn’t know if the man had a weapon on him or if he's dropping anything to the ground. He can't tell because the man’s hands were hidden from his view.

As the officer exited his vehicle, he told the man if he can see the man’s hands. As the officer’s partner approached, the man stated that all he got was a weed. A Nassau County Drug Possession Lawyer said the man was then placed under arrest and 19 glassine envelopes of marihuana were recovered from him.

At the time of the arrest, the police also recovered a small folding knife with a white and glossy handle. The officer believed that the blade was less than four inches long which is not illegal to carry in public. A Queens Drug Possession Lawyer said the man was given a summons regarding the marihuana possession and the knife. Consequently, the jury’s application to present evidence that approximately two weeks prior to the alleged crime from which the officer observed the man in possession of a knife is denied.

Sometimes we can’t avoid accusations and allegations of others even if they are not sure of what they saw or what they hear. If you happen to be in trouble because of wrong claims, the Bronx Criminal Attorneys can provide you legal advice and guidance. If you want legal representation from the skilled Bronx Drug Lawyers at Stephen Bilkis and Associates, don’t think twice and call their offices immediately.

Three men committed class B felonies involving narcotics and were sentenced to undetermined prison terms under the Rockefeller drug laws which governed sentencing of drug offenders. A New York Criminal Lawyer said two of them received sentences of 2 to 6 years and the other man was sentenced with 5 to 10 years. All were paroled but violated it and all of them were sent back to prison. After the enactment of the drug law reform act of 2009, the three men applied for resentencing.

Based on records, the drug law reform act of 2009 allows certain prisoners sentenced under the so-called Rockefeller drug laws to be resentenced. A New York Criminal Lawyer said the court hold that prisoners who have been paroled and then re-incarcerated for violating their parole are not for that reason to banned from seeking relief under the law.

Further, the drug law reform act of 2009 is codified. It permits people imprisoned for class B drug felonies committed while the Rockefeller Drug Laws were in force to apply to be resentenced under the current, less severe, sentencing regime. It was stated that any person in the custody of the department of correctional services convicted of a class B felony offense defined in the law which was committed prior to January thirteenth, who is serving an indeterminate sentence with a maximum term of more than three years, may except as provided in the law, upon notice to the appropriate district attorney, apply to be resentenced to a determinate sentence in accordance with sections of the penal law in the court which imposed the sentence.

The Supreme Court denied the applications of the three men, holding the relief under the criminal law that it was not available to re-incarcerated parole violators. A New York Drug Possession Lawyer said that on part of the two men, the appellate division agreed with the conclusion and affirmed. The appeal of the other man was reversed by the appellate division, holding that the drug law reform act of 2009 did not render parole violators ineligible to apply for resentencing.

The jury argues that the two men’s cases are also arguable but the court disagrees. Even if the first man’s maximum sentence for his original drug crime conviction has now expired, he was sentenced in another case involving a later crime while he was still imprisoned on the earlier charge. If he is resentenced on the earlier charge, that resentencing could affect the time credited toward his later sentence. As for the second man, the expiration date of his maximum sentence has not been reached. He has again been released on parole and that release does not defeat the application for resentencing that he made while still in prison. The court of appeals retains control with the two men.

The two men fit squarely within the text of the drug law reform act of 2009. Both were, when they applied for resentencing, in the custody of the department of correctional services and both were convicted of class B felonies defined in the penal law as offenses committed on controlled substances. Both were serving indeterminate sentences with a maximum exceeding three years and the exceptions do not apply to them. A New York Sex Crime Lawyer said the section excludes from the coverage of the drug law reform act of 2009 anyone serving a sentence, or having a predicate felony conviction, for a crime designated an exclusion offense, nothing in the subdivision of the law refers to the parole status of an offender.

Consequently, the appellate division orders that the two men’s case decision should be reversed. Further, the cases remitted to Supreme Court were for further proceedings in accordance with the opinion. The appeal of the other man is dismissed.

If you made unlawful actions and later realized that you wanted to change for the better, you can ask the services of the Bronx Criminal Attorneys. The team can offer immediate assessment of your lawsuit. If you wish to put your drug related cases behind you, you or your family member may seek the advice of Bronx Drug Lawyers at Stephen Bilkis and Associates.