Articles Posted in Petite Larceny

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The best evidence rule applies only when a party seeks to prove the contents of a writing. It has no application where a party seeks to prove a fact which has an existence independently of any writing, and this is true even though a writing exists evidencing that fact. ‘The real reason for the rule,’ says it ‘shows why it has come to be generally accepted that only documents, or things bearing writing, can be within the purview of the rule. In the first place, it is in the terms and construction of language that the special risk of error lies. In the second place, it is chiefly in respect to language that slight inaccuracies are likely to be of important legal consequence. A mistake, for example, in counting the number of bushels in a bin of wheat can hardly lead to serious consequences, but a mistake in a few letters of an ordinary deed may represent it as giving to Jones instead of to Jonas or as giving five hundred instead of four hundred acres.’

In a decided case, involved a suit for damages by a lady who had been detained and subsequently released after she allegedly took a small quantity of items from the department store’s drug counter. After allegedly admitting the theft she signed a release and was allowed to leave. The repossessed items were put back into stock. The civil verdict in her favor was reversed by the Appellate Division with the observation that ‘substantial error occurred during the progress of the trial by the exclusion of the testimony offered on the part of the defendant that the several drug articles found in the plaintiff’s bag, and which she testified she had purchased at Macy’s, all bore the stamp and tag of the defendant.’ The trial criminal court had sustained the plaintiff’s objection to such testimony upon the ground that the articles themselves were the best evidence. The Appellate Division, in reversing, commented that the best evidence rule relates entirely to documentary evidence, and that the store’s witnesses were therefore competent to testify that the articles found upon the plaintiff all bore the trade mark or tag of the defendant. Put another way, the best evidence rule is intended to prevent fraud or mistake and to eliminate uncertainties that may result from faulty memory.

Although reported cases in this jurisdiction appear to be silent on the issue, there is precedent elsewhere for the position taken by the prosecution in the case at issue. Where, for example, the value of contents was in dispute in a case dealing with larceny of a suitcase and its contents, the Supreme Court of Utah refused to apply the best evidence rule, and accepted oral testimony of value without requiring the production in court of the items in question. In another case, the defendant, charged with robbery, claimed that the object of the robbery–a camera case–had to be produced or its failure to do so explained before oral testimony could be admitted to describe it. The Illinois Appellate Court held that this was not necessary, and sustained the trial court’s ruling that the identity or value of the victim’s property, and the fact that it had a value could be established by oral testimony without accounting for the whereabouts of the camera case at the time of trial.

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A Queens Shoplifting Lawyer said that, this case before the court involves a supermarket owner (the complainant) who, while manning the checkout register near the exit, saw the defendant go past him with an armful of meat, subsequently estimated at $30 worth. When he called out, defendant quickened his pace and left the store. The owner took off after him, gave chase around the corner, and saw defendant enter a car. The motor was running. As the complainant paused to jot down the license plate number, the meat was thrown from the car. While this was happening a police patrol car came upon the scene. In a matter of seconds defendant and co-defendant (who was at the wheel of the car) were under arrest, charged with the Class A misdemeanor of petit larceny.

A Queens Petit Larceny Lawyer said that, at the preliminary hearing the complainant testified that the meat, once repossessed, was cleaned, re-wrapped and sold in the regular course of the supermarket’s business. The meat obviously was not produced at the hearing, which took place three weeks after the incident. Such tags as it may have had, identifying its ownership or other information, were lost sight of and were never produced in court.

A Queens Criminal Lawyer said that, at the close of the preliminary hearing the defendants now move to dismiss the complaint on the ground that the People have failed to meet the obligation to establish reasonable cause for the arrest, as required by Section 170.75, subdivision 3(a) of the Criminal Procedure Law. Although they admit that it would have been inappropriate, perhaps, to bring such perishable property into court, they contend that the prosecution had an obligation to bring in and introduce memorandum tags of ownership as a prerequisite to oral testimony of ownership. In the alternative, they claim that the People should have been required, before oral testimony of ownership could be admitted, to give a satisfactory explanation for their failure to produce such tags. To this end they invoke the functional definition of the best evidence rule as requiring ‘that whenever a party seeks to prove the contents of a writing, he must produce the original of the writing or satisfactorily account for its absence.’

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This is an appeal by defendant from a judgment of the Supreme Court, Queens County, convicting him of rape in the first degree, robbery in the first degree, burglary in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

A Queens County Criminal lawyer said that despite the fact that a review of the record demonstrates that the evidence was sufficient to sustain the conviction in this case, reversal is mandated because of the substantial probability that various errors influenced the jury’s verdict.

Evidence of defendant’s guilt was based solely upon eyewitness identification testimony. Defendant proffered an alibi, and the defense theory was that the defendant had been misidentified. During the cross-examination of both of defendant’s alibi witnesses, the prosecutor elicited testimony that both had failed to respond to a letter from the District Attorney’s office and otherwise did not come forward and disclose any information with respect to the alibi to law enforcement authorities. Contrary to the proper procedure prescribed in this type of matter, the court made no attempt to determine at a bench conference the reason for such failure on the part of the alibi witnesses to have come forward to law enforcement authorities, nor did it make any effort to determine whether there existed a good faith basis for the prosecutor’s questioning in this regard.

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The due process standard is an inherently subjective one since it can only be applied on a case-by-case weighing of the cumulative effect of a variety of prejudicial circumstances on the totality of the trial. Then, depending upon the visceral balance of the particular judges, the appellate determination may be tipped in favor of reversal on mockery of justice grounds, where both majority and dissenter agreed on the mockery standard but arrived at contradictory conclusions.

Scrutiny of the legal assistance defendant received in connection with the victim case must begin with consideration of his attorney’s agreement that he be produced to help solve other crimes. As the lawyer subsequently acknowledged at the Huntley hearing, his role in bringing about the July 7 and 14 interrogations and his capacity at the sessions was as a “friend of the court.”

The position of the lawyer as a guardian of the accused’s right against self-incrimination is so basic to modern criminal law jurisprudence that it should hardly be necessary for us to observe that participation in an experiment designed solely to elicit incriminating evidence from a client casts a shadow on every subsequent step taken in purported defense of that client. 18 It resulted in a clear surrender of the criminal defendant’s constitutional privilege and it breached defense counsel’s duties to take all necessary steps to preserve his client’s rights.

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These are two juvenile delinquency proceedings pursuant to Family Court Act article 3. Appellant appeals are from (1) a fact-finding order of the Family Court, Queens County, which, after a fact-finding hearing, found that the appellant committed an act which, if committed by an adult, would have constituted the crime of resisting arrest, (2) an order of disposition of the same court, which, upon the fact-finding order, and a second fact-finding order of the same court, after a hearing, finding that the appellant committed acts which, if committed by an adult, would have constituted the crimes of criminal possession of stolen property in the fifth degree and petit larceny adjudged him to be a juvenile delinquent and placed him on probation for a period of 12 months, and (3) an amended order of disposition of the same court. The appeal from the amended order of disposition, brings up for review the fact-finding order.

A Queens County Criminal attorney said that the orders appealed from arose from two separate incidents. In March 2003 the appellant was arrested for disorderly conduct; the charge was subsequently changed to resisting arrest. In August 2003 the appellant was arrested again, this time for shoplifting.

With respect to the first incident, viewing the evidence in the light most favorable to the presentment agency, the Court find that it was legally sufficient to establish beyond a reasonable doubt that the appellant committed acts which, had they been committed by an adult, would have constituted resisting arrest.

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A Queens Petit Larceny Lawyer said that, in its charge, the court declared that other crimes committed by the defendant which the jury had heard about could be considered solely on the question of his credibility but not to establish criminal bent. Despite the colloquies which had occurred during the trial, the instructions relative to the insanity defense contained no reference to these other crimes. Nevertheless, upon completion of the charge, defense counsel stated that he had no exceptions or further requests to make. The jury convicted the defendant of attempted murder, burglary in the second degree, and possession of weapons. On November 25, 1974 the defendant was sentenced to concurrent terms of 8 1/3 to 25 years, 0 to 10 years, and 0 to 5 years, respectively.

The issues in this case are whether: (1) defendant’s sanity was not established beyond a reasonable doubt; and (2) that he was deprived of the effective assistance of counsel.

The latter issue not only implicates the standard or standards under which claims of ineffective assistance of counsel must be evaluated in this State, but it also compels us to examine how such claims are affected by considerations of trial strategy. Ultimately, we must decide the relationship between the harmless error doctrine and proof of ineffective assistance of counsel.

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However, this power of inquiry is not unlimited and the extent of such examination lies ‘largely within the discretion of the trial judge’. This discretion in the past has been utilized only at time of trial, although the courts have indicated that under proper circumstances a judge might, in his discretion, permit an advance ruling.

Exactly what constitutes appropriate circumstances is a question which has not yet been resolved by our Appellate Review but, based upon experience, such a hearing should be granted only in those unique factual situations where a defendant (1) can show a valid, disputed issue of law by establishing that his prior convictions would violate a Recognized constitutional right or create substantial prejudice to him, and (2) where a defendant can clearly show a pressing need for such a determination in advance of trial.

In regard to the first point, it is to be noted that since the defendant seeks this unusual relief, the burden of proof would normally fall upon him and, hence, it is incumbent that he clearly set forth in his moving papers the proposed criminal convictions that he seeks to bar, the date and courts of arrest and the ultimate disposition of same. Further, he should specify the exact relief sought for each crime and cite the statutory or case law and facts upon which he relies. General allegations of prejudice have never constituted proof of an issue and this is particularly so in an unusual case of this nature. Vague requests for relief based on general injustice might here give rise to the suspicion that a defendant is merely making a motion on the theory that he has nothing to lose or can, at the very worst, attain a preview of the District Attorney’s tactics by engaging in a ‘fishing’ expedition.

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A Queens Criminal Lawyer said that, at about 3:30 A.M. on June 17, 1972, a girl of 15, was brutally knifed in the chest while sleeping in her ground floor bedroom. Before expiring, the girl told her parents (who had rushed to the room in response to her scream) that the assailant had stabbed her through an open window. Four days later, defendant was arrested for the crime and allegedly re-enacted the murder three times at the police precinct house and a fourth time at the scene of the crime itself. It was shortly discovered that defendant was being sought in connection with an existing indictment for attempted murder and some lesser crimes, that he had been adjudicated incompetent to stand trial on that indictment, and that following confinement to various mental institutions, he had been released in February of 1972 without the sanction of law enforcement authorities. Two weeks after the arrest for the slaying, the defendant’s appointed attorney agreed to the delivery of his client to the District Attorney’s office for further interrogation. During the course of two examinations at the prosecutor’s office, defendant is said to have re-enacted numerous murders and assaults. More than two years later, after trial by jury, the defendant was convicted on his earlier indictment. At a bench trial which followed, he was convicted of murder.

A Queens Criminal Lawyer said that, the first of the judgments appealed stems from events which occurred in Woodhaven in Queens County during the pre-dawn hours of September 5, 1971. The defendant originally was apprehended when two police officers, searching for a prowler, came upon him walking the street in dark clothes. When asked for identification, he allegedly responded by attempting to shoot one of the officers. The gun having misfired, the policemen wrestled the six-foot and four-inch defendant to the ground, disarmed him, and discovered that he possessed an automobile license, registration, and Social Security card in the name of a certain individual. Awakened by the police, the owner of the Social Security card related that before retiring she placed her purse containing the three documents on the dining room table next to a closed window. Not only was the purse missing, but the window was open and the table cloth had been pulled the length of the table toward it.

A Queens Petit Larceny Lawyer said that, the defendant was indicted for attempted murder, reckless endangerment in the first degree, burglary in the second degree, possession of weapons, etc., as a felony, criminal possession of stolen property in the third degree, and petit larceny, but after being jailed for 10 days and confined at the Kings County State Hospital for six to seven weeks, he was adjudicated incompetent to stand trial. Further successive confinements in two other mental institutions terminated with the defendant’s release by Mental Hygiene officials in February, 1972, without notice to the proper authorities.

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A Queens Criminal Lawyer said that, defendant seeks an order restraining the District Attorney from cross-examining him regarding specific prior convictions. A hearing was held on September 12, 1973 and the Court determined the facts to be as follows: The defendant herein was indicted by a Queens County Grand Jury and charged with two counts of robbery in the first degree, assault in the second degree and criminal possession of a dangerous drug in the sixth degree. His counsel has placed before the Court the fact that the defendant has a prior criminal history, alleging: 1. That defendant in 1967 was granted youthful offender treatment in connection with a charge of possessing a prescription unlawfully; 2. A year later, in April 1968, defendant was arrested for robbery in the first degree and pleaded guilty to petit larceny in November; 3. On February 14, 1972 defendant was arrested on a charge of possession of a weapon and loitering and was sentenced to a conditional discharge after pleading guilty to loitering.

A Queens Petit Larceny Lawyer said that, defendant now moves to ‘restrain the District Attorney and preclude the people from introducing any evidence’ with regard to the above convictions or the underlying acts which gave rise to them. It is his contention that, while the People would allegedly offer such convictions solely to impeach his credibility as a witness, the practical result would be to establish his guilt in relation to the present crimes. In effect, such evidence would influence the jury to believe that the man now on trial is either a habitual criminal or has a specific propensity for the crime of robbery with which he is now being charged. The defendant concludes that, because of this, the probative value of impeachment of his credibility is clearly outweighed by the prejudicial value before a jury. This, in defendant’s mind, constitutes a denial of the constitutional right to a fair trial.

A Queens Grand Larceny Lawyer said that, the People, first, dispute the facts of defendant’s final conviction, pointing out that their records show that defendant on February 14, 1972 was indicted for possession of a weapon, pleaded guilty to same and received a sentence of probation for three years. Next, they attacked the logic of his contentions, maintaining that the defendant has offered no legal basis to support them; nor cited any pertinent Supreme Court decision to establish the alleged violation of constitutional rights. Further, it is submitted that the defendant has presented no facts of any kind, other than the bare recital of his prior criminal history, which might indicate substantial prejudice or show unique harm by the admission of such crimes before a jury.

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A man filed an appeal from a judgment convicting him of burglary in the third degree, criminal possession of stolen property in the third degree and petit larceny, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial of that branch of the man’s motion which was to suppress physical evidence.

The appellate division stated that the hearing court’s denial of the man’s motion to suppress the items seized from his person should not be reversed. It was further stated that the decision was supported by the record, which established that the stop and inspection of the man at the scene of the crime was founded upon a reasonable suspicion that he had committed the crime and that he was armed and could be dangerous.

Sources revealed that to sustain a conviction based on circumstantial evidence, the facts from which the inference of the offender’s guilt is drawn must be established with certainty, be inconsistent with his innocence, and exclude to a moral certainty every hypothesis other than guilt.

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