April 24, 2013

Court Looks at Elements of Burglary vs. Petit Larceny

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

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

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

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

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

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

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

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

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

April 23, 2013

Appellants Claim Jury Instruction Harmed Their Case

The Facts of the Case:

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

The case is now before the court for certiorari.

The Ruling of the Court:

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

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

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

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

April 21, 2013

marijuana

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

Case Background

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

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

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

Trial

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

Court Discussion and Decision

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

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

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

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

Stephen Bilkis & Associates offers free consultations to anyone that visits our offices for the first time to discuss their legal issue, whether it involves a theft, drug possession or sex crimes. If you want to speak with a lawyer who has years of experience, contact one of our New York City offices today. We are happy to help you through any type of legal issue that you may be having.

March 24, 2013

Defendants Contend Search of their Vehicle was Unlawful

The appellants in this case were convicted in a nonjury trial for possession of 230 pounds of marijuana with intent to distribute. The marijuana was found in a locked trunk of a car that had been rented and driven by one of the defendants (marijuana possession). Another defendant was a passenger in the car at the time an immigration search was conducted.

Case Facts

The checkpoint where the search took place was on highway 35. The government often employs checkpoints at this location or one nearby.

A New York Criminal Lawyer said the search in question occurred at around eight in the morning. The checkpoint at that time was divided into two sections, primary and secondary. The officers were conducting what is referred to as a blitz. This is where every car is stopped and searched to make sure that there are no aliens coming through.

This type of search for illegal immigrants is valid. Once the search of the vehicle in this case was started it was legitimate for the officers to look through all areas of the car where the aliens may be hiding. Evidence of other crimes may be seized at this time if it is in plain view.

A New York Criminal Lawyer said the defendant’s vehicle was searched and the officers asked the driver of the car for the key to the trunk. Both individuals denied being given a key to the trunk. The officers made a call to the rental agency and a key to the trunk was brought to the area. When the officers opened up the trunk of the vehicle they found marijuana.

Case Discussion and Decision

The facts that have been presented to the court show that there was sufficient evidence to support the conviction of both the defendants. The search that was conducted was completely legal. The conviction and sentences are confirmed.

Stephen Bilkis & Associates offers free consultations to those that visit our office for the first time, whether you have been charged with drug possession, theft or sex crimes. You may contact any of our New York City offices to speak with a qualified attorney regarding your case.

March 23, 2013

Court Decides Constructive Possession Issue

The appellant in this case was charged by information with possession of over five grams of marijuana (marijuana possession). He filed a sworn motion to have the reciting dismissed. The motion in part stated that he lived in the home with his wife and children and that while the search of the home revealed marijuana, he was not in actual possession of any type of controlled substance at the time the search took place. The state filed for a leave to amend, which was granted.
The state then prepared to move that the defendant was in constructive possession of a controlled substance. The state plans to prove this by the fact that the defendants name and address were on the box that contained the marijuana and that the marijuana was found in his bedroom closet.

Case Discussion

A New York Criminal Lawyer said when it comes to constructive possession, the general rule is that it can be stated in fairly simple terms. Proof of guilt on this theory consists of three basic elements. First, the accused must have control and dominion over the contraband. Second, the accused must be aware that the contraband is in his presence. Finally, the accused must know about the illicit nature of the contraband.

An NY Criminal Lawyer said all of these elements can be proved by circumstantial evidence. When the evidence is found in a car, home, etc. the accused can be thought to have constructive possession of the contraband.

Court Decision

The evidence that has been brought before the court supplies enough evidence to support the possibility of the constructive possession of the marijuana by the defendant. The ruling from the trial court to deny the motion to dismiss is affirmed.

There are many reasons that a person may need to speak with a lawyer. If you have any reason to talk to a lawyer, for drug possession, theft or sex crimes, contact Stephen Bilkis & Associates. Our offices are located in New York City and we provide a free consultation to discuss your case.

March 22, 2013

Defendant Charged with Marijuana and Cocaine Possession

The appellant along with a co-defendant were charged with felony possession of marijuana, cocaine possession, possession of a drug implement, and possession of methaqualone. The appellant was denied the motion to suppress certain physical evidence. The appellant was tried alone. The trial resulted in a hung jury mistrial. A New York Criminal Lawyer said the trial court then ordered that the case of the appellant be tried with the co-defendant. The joint trial resulted in the appellant being found guilty as charged.

The appellant was sentenced to five years’ probation after serving six months in jail. The appellant motioned for a new trial, which was denied and this appeal followed.

Relevant Facts

The co-defendant was pulled over by police officers and asked for identification. He did not have id on him and the officers arrested him for driving without a valid license. The co-defendant tried to establish his identity and told the officers that he was staying at the Holiday Inn with his girlfriend. The co-defendant was taken to the police station and the two officers went to the hotel to confirm his story.
When they arrived at the hotel they asked about a room that was registered to the co-defendant. The room was registered to the male, but two people were listed as occupying the room. The officers went to the room and knocked on the door. A NYC Criminal Lawyer said the appellant opened the door and the officers saw in plain view several bags of marijuana, a pipe, a scale, and a box of sandwich bags.

The officers then entered the room and took the pipe and marijuana and arrested the appellant for possession of a controlled substance. A further look around the room found two more bags of marijuana and a bag of cocaine. No other search was made at the time. The officers secured the room and then obtained a search warrant to search through the room.

When the thorough search of the room was conducted there was additional contraband found including a tablet of metaqualone and a bag of cocaine shoved into the back of a radio. The charges against the appellant are a result of these facts.

Case Discussion and Decision

The appellant has argued that the trial court erred by allowing the marijuana to be introduced as evidence. However the court has determined that her argument is without merit in this regard. The argument is also made for the sufficiency of the evidence.

The appellant also argues that the police coming to the hotel room was improper. However, there is nothing improper about the police trying to confirm the identity of the other defendant. A New York Sex Crimes Lawyer said the officers conducted the search appropriately and only used probable cause to enter the room. The officers properly obtained a search warrant for the remaining areas of the room.

For these reasons, all of the motions by the appellant are dismissed and the conviction and sentence is confirmed.

Stephen Bilkis & Associates offers free consultations to those that are in need of legal advice and visit our offices for the first time. We have several offices located throughout New York City. Contact us at any time to set up an appointment.

March 19, 2013

Defendant Contends Improper Jury Instructions Were Given in Drug Case

Case Facts

An informant contacted agents of the Drug Enforcement Administration and informed them that there were large transactions of large quantities of illegal drugs being made in the area. The informant then helped the Drug Enforcement Administration create a reverse sting operation. In the operation DEA officers poses as sellers of illegal drugs to help ferret out illicit drug traffickers. A New York Drug Possession Lawyer said the informant was instructed to put the word out that there was a large amount of marijuana available for sale.

The informant approached one of the bartenders at a local restaurant and told him that he had some friends that were looking for buyers for 1000 pounds of marijuana at $200 each. The informant told the bartender that they could easily make $25,000 each in the deal.

The bartender made a phone call to one of the defendants of the case and asked if he was interested in making a purchase that large. A New York Criminal Lawyer said the meeting was set and the two individuals told the informant that they would need a sample of the pot.

A meeting with the DEA “dealer” the informant, the bartender, and the other defendant was set up and the transaction was discussed. The defendant stated that they needed a sample before any purchase would be made.

Another meeting was scheduled and a sample was provided. The defendant at the meeting stated that he would take the sample to his friend and then determine whether or not they were going to make the purchase.

The defendants agreed to make a purchase of up to 4000 pounds of what they were told was Columbian marijuana. The price per pound was set at $300 because the undercover agent told the defendants that the original amount of pot that he intended to sell them had already been sold and this was a new batch from Columbia as opposed to coming from Mexico.

Case Discussion and Decision

The defendants on appeal state that the trial court erred by not allowing instructions to be given to the jury and for these reason their trial was prejudiced.

The court has reviewed all of the records of the trial and the case and finds that the defendants were given plenty of opportunity to present their theory to the jury and that they did so. The research shows that the court’s acts did nothing to undercut the defendant’s theory of the case and that the defendant’s arguments were displayed before the jury.

A New York Sex Crimes Lawyer said the court has reviewed all of the facts that are relevant to the case of the defendants. After careful consideration all of the judgments that were filed by the district court are affirmed. The appeals are denied in every aspect and the sentences shall stand.

If you need to speak with a lawyer regarding a legal issue that you have, contact Stephen Bilkis & Associates. Our offices are located all throughout New York City for your convenience. You may call us at any time to set up an appointment to speak with a lawyer about your case. A free consultation will be provided.

March 18, 2013

Court Decides if Defendant Has Right to Speedy Trial after Traffic Infraction

The defense motion to dismiss the charge of Driving While Ability Impaired by Alcohol, a traffic infraction, pursuant to the speedy trial provisions of Criminal Procedure Law (CPL) is denied. While CPL does not apply to traffic infractions there is a constitutional right to a speedy trial which has not yet been violated.

A New York DWI Lawyer said it is undisputed that fifty-two days between the accused man’s arraignment and the complainant being ready for trial are chargeable to the complainant. The accused argues that the case should be dismissed as more than 30 days have passed since the accused man's arraignment, the time allowed to be ready for trial on a violation.

Criminal Procedure Law establishes that when the accused is not in custody, the complainant must be ready for trial within 90 days if the highest crime charged is a class A or unclassified misdemeanor which is punishable by a term of imprisonment of more than three months or within 60 days if the highest crime charged is a class B misdemeanor which is punishable by a term of imprisonment of less than three months or within 30 days if the offense is a violation.

However, a Nassau County DWI Lawyer said the statute is noticeably silent on the issue of whether a person charged with a traffic infraction has statutory speedy trial rights. The Appellate Term Second Department has twice held that CPL is not applicable to traffic infractions.

Trial courts are divided on this issue. Most trial courts have held that CPL was inapplicable in matters concerning traffic infractions, as CPL only applies to felonies, misdemeanors and violations. However, a contrary view postured by the judge held that CPL applied to traffic infractions since Vehicle and Traffic Law (VTL) stated that traffic infractions shall be deemed misdemeanors and all provisions of law relating to misdemeanors except as herein otherwise expressly provided shall apply except that no jury trial shall be allowed for traffic infractions. Therefore, the court concluded, the prosecution had 60 days, the period for class B misdemeanors, in which to be ready for trial.

Nowhere does VTL state that traffic infractions are to be handled like class B misdemeanors. Similarly, the speedy trial statute only applies to unclassified misdemeanors if the accused faces a term of imprisonment greater than 3 months. No matter how tortured the reasoning, a violation of the Vehicle and Traffic Law is not a misdemeanor. VTL clearly states that a violation of DWAI shall be a traffic infraction and shall be punishable by a fine of not less than $300 or more than $500 and/or up to 15 days in jail.

A New York DWI Lawyer said the Penal Law makes it clear that a traffic infraction is not a violation it is instead a unique non criminal offense. A violation means an offense, other than a traffic infraction, for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed. Accordingly, a traffic infraction cannot conveniently be treated as a violation for procedural or speedy trial reasons as the Legislature has expressly excluded a traffic infraction from the definition of a violation.

March 18, 2013

Defendant Seeks to Withdraw his Plea Based on Duress

Defendant was indicted in three separate indictments by a Grand Jury charging him with two counts of assault in the second degree, escape in the second degree and resisting arrest; two counts of grand larceny in the third degree; and two counts of grand larceny in the second degree and one count of grand larceny in the third degree, respectively. Thereafter, a New York Criminal Lawyer said the People moved to permit defendant to withdraw his not guilty pleas to all three indictments and substitute therefor a plea of guilty to one count of grand larceny in the third degree with respect to the second indictment and one count of grand larceny in the second degree with respect to the third indictment, in full satisfaction of all three indictments and of a felony offense for which he had been arrested but not yet indicted.

On appeal defendant urges that the plea bargain was illegal because it encompassed dismissal of a felony complaint for which he had not yet been indicted. A New York Criminal Lawyer said the court ruled that while County Court had no authority to dismiss the felony complaint and did not purport to do so, the District Attorney had the discretion and authority to decline to continue prosecution of that offense. His agreement to do so as part of a negotiated plea is certainly legal.

Defendant next contends that his guilty plea to grand larceny in the second degree, a class D felony, permitted a maximum sentence of 3 1/2 to 7 years as a second felony offender. However, because the plea agreement provided for a sentence of 4 to 8 years in the event that defendant failed to make restitution of $11,000, defendant claims that his plea was illegal. We disagree. The Court viewed County Court's action as an inadvertent misstatement. At the time of sentencing County Court properly sentenced defendant to a prison term of 3 1/2 to 7 years. It has long been the rule that a court has the inherent power to correct its own error in imposing sentence.

At sentencing, defendant moved to withdraw his guilty pleas based upon his innocence as well as fraud, mistake and extreme distress due to his wife's ill health. Additionally, a New York Drug Possession Lawyer said that defendant moved for additional time to obtain new counsel because his attorney had not effectively represented him. Defendant contends that County Court erred in denying him a hearing concerning withdrawal of his pleas and his claim of ineffective assistance of counsel. The Court disagreed. The question of whether defendant should be permitted to withdraw his plea rests in the sound discretion of the trial court and a hearing will be granted only in rare instances. Defendant's conclusory statements of coercion and duress did not require a hearing. Additionally, defendant's belated protestation of innocence should not have resulted in the withdrawal of his plea or a hearing where he was afforded sufficient opportunity to state the basis for his withdrawal application. Defendant's detailed account of the commission of his crimes without apparent hesitation and without protestation of innocence during the plea allocution presented an issue of his credibility which County Court could properly resolve against him without a hearing.

With regard to defendant's claim of ineffective assistance of counsel at the time of sentencing and his motion for adjournment to retain new counsel, the court ruled that County Court properly denied that application. It is clear that defendant received an extremely advantageous plea bargain and there is nothing in the record to cast doubt on the apparent effectiveness of counsel. Furthermore, a New York Sex Crimes Lawyer said that the defendant had expressed satisfaction with his representation at the time of his pleas. Under such circumstances, the court has held that a claim of ineffective assistance will be rejected.

The Court stated that once the existence of a previous felony conviction has been proven beyond a reasonable doubt, the question of whether a foreign crime is equivalent to a New York felony must be determined by the court, as a matter of law, by comparing the elements of the foreign statute with an analogous Penal Law felony.

Stephen Bilkis and Associates with its New York Grand Larceny Lawyers can assist you throughout the litigation of your case. It has offices within New York Metropolitan area, including Corona, New York.

March 18, 2013

Defendant Charged with Stealing Contents of Airplane Hangar

In this case, a security officer assigned at an airline’s hangar at Kennedy Airport was approached on numerous occasions in the spring of 1976 by the defendant, who indicated an interest in securing entry to the hangar and in taking money from the safe therein. The security officer was offered the chance to make some money if he co-operated. A New York Criminal Lawyer said during the course of these conversations, he was asked, in increasing detail, about the alarm system in operation at the hangar. The security officer reported these conversations to his supervisor, the head of security of the airline.

The security officer had been in continual touch with his supervisors and the police had been alerted. Indeed, by the time Defendant was permitted into the hangar, one gate was manned by an undercover police officer posing as a security guard.

On October 26, 1976, Defendants called the security officer and told him they wanted to "come in that night." At 11:15 P. M. The security officer met defendant at a diner. At 11:30 they entered a car and were joined by the co-defendants, who was carrying an attache case. Enroute to the airport, defendant discussed the job with the security officer. Defendant told him that in five years, "when its all over," his share would be sent to him. Defendant advised him that in order to make it "look good" he would shackle him and take his gun. The other security guard would be tied and dropped off at the edge of the airport.

Upon their arrival at the hangar, the four men entered the building via a loading platform. They walked toward the main vault but were stopped by the police some 25 to 50 feet before they reached their destination. The attache case was found to contain a number of tools including home-made gear for "exploring a circuit," a C clamp used to make a ground connection, a hand set, such as is mainly used by telephone repairmen, and jumpers which could be used to bypass a circuit.

Defendants were indicted for burglary in the third degree, attempted grand larceny in the second degree, conspiracy in the third degree and possession of burglar's tools.

Subsequently, one of the defendants made an omnibus motion which sought, inter alia, inspection of the Grand Jury minutes and dismissal of the indictment. * Criminal Term granted the motion to the extent of dismissing the burglary and attempted grand larceny counts of the indictment. The burglary count was dismissed upon the ground that respondent's entry into the hangar "was with the consent of the security agent and his superiors." The attempted grand larceny charge was dismissed upon the ground that the evidence adduced failed to show that respondent was "very near to the accomplishment of the intended crime."

It is from the dismissal of these two counts of the indictment that the Prosecution appealed.

The court held that the burglary and attempted grand larceny counts should be reinstated.
In the instant case, if the evidence before the Grand Jury was sufficient to establish that respondent believed he was entering the hangar unlawfully i. e., without consent of the airline with intent to commit a crime therein, it was error for Criminal Term to have dismissed the indictment for burglary.

The court found that the requisite mental culpability was sufficiently established by the testimony before the Grand Jury. It is patent that respondent did not believe he had the consent of the airline or its authorized representative to enter the hangar. Moreover, the evidence before the Grand Jury was more than adequate to support the inference that respondent intended to commit a larceny within the hangar. Accordingly, the count of the indictment charging burglary in the third degree was improperly dismissed.

As to the count of the indictment charging attempted grand larceny, the said count should not have been dismissed if (a) there was sufficient evidence to establish that respondent intended to commit a specific crime and (b) there was proof that respondent "acted to carry out his intent."

Although Criminal Term correctly stated the standard to be applied, viz., whether respondent was "very near to the accomplishment of the intended crime," the court held that a number of facts militate toward this conclusion. One or more of the defendants reconnoitered the premises and the vault to be opened on a number of occasions. While these actions might not, in and of themselves, constitute a sufficient "overt act", a certain "firmness of purpose is shown when the actor proceeds to scout the scene of the contemplated crime in order to detect possible dangers and to fix on the most promising avenue of approach"

In addition, defendants were not only in possession of the tools needed to accomplish their intended crime, but they possessed these tools within 25 to 50 feet of the main vault. Finally, defendants had already effected what they believed to be an unlawful entry into the premises to be burglarized and were, figuratively if not literally, within sight of their goal. Under these circumstances, the count of the indictment charging attempted grand larceny should not have been dismissed.

Stephen Bilkis and Associates with its New York Grand Larceny Lawyers can assist you to win your cases before the court. It has offices within New York Metropolitan area, including Corona, New York.

March 5, 2013

Defendant Charged with Criminal Facilitation in the 4th Degree

An appeal was made by the accused man from a judgment of the County Supreme Court rendered on October 26, 1983, convicting him of four counts of criminal facilitation in the fourth degree, upon a jury verdict, and the imposing sentence. A New York Criminal Lawyer said the judgment was affirmed and the matter was remitted to the County Supreme Court for further proceedings pursuant to the Criminal Procedure Law.

Pursuant to the defense counsel's request, the trial court charged criminal facilitation in the fourth degree as a lesser included offense of grand larceny in the second degree and attempted grand larceny in the second degree. The accused man was ultimately found guilty of four counts of criminal facilitation in the fourth degree and acquitted of all other charges. The accused argues, as he did on his motion to set aside the verdict, that criminal facilitation in the fourth degree is not a lesser included offense of grand larceny in the second degree and attempted grand larceny in the second degree and that the defect in erroneously charging such a request is non-waivable inasmuch as it goes to the court's subject matter jurisdiction. A New York Criminal Lawyer said criminal Term resolved both issues against the accused man. Since the accused man effectively waived any error in the submission of the charge of criminal facilitation in the fourth degree to the jury, the Appellate Court affirms.

A comparative evaluation of the two operative statutes, grand larceny in the second degree and criminal facilitation in the fourth degree reveals that the latter is not a lesser included offense of the former because it is theoretically possible for a person to commit the crime of grand larceny in the second degree without intending to aid anyone else in the commission of a felony.

Nor does the fact that the charges of grand larceny were grounded on a theory of accessorial liability render criminal facilitation in the fourth degree a lesser included offense of grand larceny in the second degree. The phrase acting in concert is not an essential element of the crime of grand larceny in the second degree. Moreover, a New York Drug Possession Lawyer said assuming that the definition of accessorial liability contained in Penal Law could be grafted onto the elements of grand larceny in the second degree, the crime of criminal facilitation would still not qualify as a lesser included offense. As the Appellate Court recently noted in similar circumstances, under the definition of accessorial liability that one could be an accessory to grand larceny by, for example, requesting or commanding another to steal without actually providing the means or opportunity to accomplish the theft. It is thus possible to be an accessory to a crime without being a facilitator. Hence, a New York Sex Crimes Lawyer said criminal facilitation in the fourth degree is not a lesser included offense of either grand larceny in the second degree or attempted grand larceny in the second degree and the crime should not have been submitted to the jury as a lesser included offense.

However, the accused waived any objection to the error in submission by requesting the down charge but the Court of Appeals has since made clear that there is any error in the submission or consideration of lesser included offenses--including specifically the failure of the crime to meet the theoretical impossibility test that provides that it is waived by the accused man unless timely objection is made. Simply put, an error of this sort is not jurisdictional. Accordingly, the accused man has waived any objection to the submission of criminal facilitation in the fourth degree as a lesser included offense of both grand larceny and attempted grand larceny in the second degree.
A premeditated crime is far much worse than a spontaneous one. Lesser participation does not mean that you should be treated less guilty of it. If you want to convict a person who committed a crime, consult Stephen Bilkis and Associates’ NY Grand Larceny Attorney together with the New York City Criminal Lawyers.

March 3, 2013

Juvenile is Charged with Cocaine and Marijuana Possession

A juvenile is appealing adjudications made against him that found him guilty of possession of cocaine and marijuana. A New York Criminal Lawyer said he states that the trial court erred when they denied his motion for judgment of acquittal when the state had failed to present substantial evidence to prove constructive possession of the contraband.

Adjudicatory Hearing

During the adjudicatory hearing there was testimony that revealed that the defendant along with a friend asked another person for a ride to a woman’s house to pick up some items. The defendant rode in the back of the individual’s truck. The defendant and his friend got out of the truck at the house. The young men did not know that the house was under surveillance.

A police officer had received a call from an informant who told him that there were guns and narcotics stored at the home. The officer watched as the defendant entered the house and the friend waited on the porch outside. A New York Criminal Lawyer said the defendant came out of the house with a black duffel bag and a white lock box. These items were placed in the back of the truck and the two males got back into the truck and left.
The officer initiated a stop of the truck and obtained permission to search the truck. He found the bag and the lock box. The bag was open and he saw an empty holster inside of it. The lock box had a lock on it and no one claimed ownership of the box.

A New York Drug Possession Lawyer said search warrant was obtained and the box was opened. Inside the box there were 988 grams of marijuana and 5 grams of cocaine.

The defendant was then told his rights. He told the police officer that he had taken some guns inside the house because they were concerned that they were being watched by police because another one of their friends had been served with a search warrant. A New York Sex Crimes Lawyer stated that he did not know what was in the box, but that he suspected that it might contain marijuana.

Case Discussion and Decision

When the state rested the defendant motioned for a judgment of acquittal. This was denied and the juvenile was charged with possession of both marijuana and cocaine. We believe that the state did present sufficient evidence in regard to the possession of marijuana charge and that is affirmed. The admission of the defendant that he thought the box might contain marijuana was enough to confirm this particular verdict.

The state failed to establish that the defendant had knowledge of the fact that there was cocaine in the box. The officer testified that he never saw the defendant open the box and for this reason it is impossible to determine whether he had knowledge of the cocaine. For this reason, the charge of possession of cocaine is reversed.

The law offices of Stephen Bilkis & Associates offers free consultations to those that need legal advice and visit our office for the first time. We have conveniently located offices throughout New York City. Contact us today to set up an appointment with a qualified New York attorney.

March 1, 2013

Defendant Contends Sobriety Check Point was Illegal

At around midnight of April 15, 1992, the police set up a DWI checkpoint at the corner of Clinton and Stanton Streets in Manhattan. The police officers set up the checkpoint so that all the passing cars would be funneled into one lane and every motorist would have to pass the checkpoint.

A New York Criminal Lawyer said when the accused drove up to the check point, the police officer was standing near the driver’s side. He knocked on the window and the driver rolled down his window. The police officer asked the driver something which he could not remember when he testified at the probable cause/ preclusion hearing. Even the accused could not remember what the police officer asked him.

At this time, the police officer asked the driver to pull over to the side of the street because he saw that the driver had watery bloodshot eyes and he could smell alcohol on his breath. When the driver was already parked on the side of the road, the police officer asked him to exit the car. The driver was unsteady on his feet. The driver told the police officer that he drank two beers and had to shots of vodka. The police officer also found an empty bottle of vodka in the car.

At the driver’s arraignment, the prosecutor served notice on the lawyer of the driver that the accused driver had stated to the police that he had two beers and two shots of vodka. A New York DWI Lawyer said the prosecutor gave the lawyer a copy of the IDE report (Intoxicated Driver’s Examination Report) filled out by the arresting officer. The IDE Report contains a list of questions that a police officer may ask the driver who was stopped on the road. On this piece of paper, the police officer noted down the answers of the driver. While the prosecutor gave the lawyer a copy of the IDE report to the lawyer of the driver, the prosecutor did not include the IDE report in the notice as one of the documents he intended to present at trial as evidence against the accused driver.

During the trial when the prosecutor was attempting to introduce the IDE report, the lawyer for the accused driver objected and asked for preclusion of the IDE report on the ground that it was not included in the notice. A Nassau County DWI Lawyer said the lawyer for the accused driver also put in question the legality of the checkpoint at which the accused driver was stopped. The lawyer for the accused driver also asked for the preclusion of the vodka bottle found in his car.

The question before the Court is whether or not the IDE report should be precluded; and whether or not the checkpoint at which the accused driver was stopped was established in accordance with the guidelines.

The Court held that although the prosecutor gave the lawyer for the accused driver a copy of the IDE report, the prosecutor did not notify the lawyer or the accused driver that he intended to use the IDE report as evidence against the accused driver. The Court reasoned that the reason for requiring the prosecution to indicate all the pieces of evidence it intended to present and to offer is so that the accused can fully prepare for his defense. By not including the IDE report in the notice, the prosecutor showed that he was not going to use that particular IDE report at trial. The prosecutor is now precluded from presenting the IDE report at trial.

The Court also held that the prosecution was unable to establish that the checkpoint was established in accordance with the guidelines. First, the police officer who testified did not know why the DWI checkpoint was established at the particular corner. No supervisory officer was present overseeing the operation of the checkpoint. There were no signs on the road indicating that there was a DWI checkpoint up ahead. There was no proof that the police officers manning the checkpoint asked the questions which were right and proper for them to ask the motorists they were stopping at the checkpoint. Particularly, the Court noticed that the police officer who stopped the accused driver did not ask him where he had been. This question would have been proper for him to ask at the checkpoint but the police officer could not remember if he had asked the accused driver that question.

Since the prosecution failed to prove that the checkpoint was established and operated in accordance with the guidelines, then the arrest and the seizure of the vodka bottle from the car of the accused driver were also illegal.

Were you stopped at a DWI checkpoint? Were you arrested for DWI at the checkpoint? You need advice from the NYC DWI lawyer. A NY DWI lawyer can first argue for you that the checkpoint was not established or operated in accordance with the guidelines. At Stephen Bilkis and Associates, their New York City DWI Lawyers are willing to help you file a motion for a hearing to determine probable cause for you arrest. At this hearing, the New York DWI lawyer can raise the theory that the checkpoint was established and operated in an arbitrary fashion. Call or visit any of the offices of Stephen Bilkis and Associates in the New York area. Speak with their New York DWI lawyers on staff.

March 1, 2013

Court Determines if 18yr. Old Must Register as a Sex Offender Under SORA

An 18 year old man was indicted in Florida for Sexual Battery in October 1997. When he was arrested and arraigned under the indictment, the 18-year old entered a nolo contendere plea (this means he did not plead guilty or not guilty but that he was not contending the indictment). A New York Sex Crime Lawyer said the trial court withheld a judgment of conviction and instead ordered that the 18-year old be placed under order of supervision. He was required to be under four years’ probation. The Florida trial court also ordered the 18-year old to register as a sex offender in the state of Florida. This sexual offender registry is the equivalent of New York’s sex offender registry under the Sex Offender Registration Act.
The 18-year old finished his four-year probation. In February 2006, the 18-year old wrote to the Criminal Justice Services of the state of New York to inform it that he was a registered sex offender in Florida who was contemplating on moving to New York.

The Criminal Justice Services sent him the sex offender registration forms by mail and sent him a letter requiring him to register under the SORA. A New York Criminal Lawyer said the Board also recommended that he be registered as a sex offender. The Supreme Court in Kings County assessed his risk level as level 1.

Three years later, after the 18-year old had already been living in New York for years and after he had been ordered to register as a sex offender, the 18-year old filed a petition to vacate the Board’s decision ordering him to register as a sex offender in New York. A Nassau County Sex Crimes Lawyer said the 18-year old claims that he was not a “convicted sex offender” which is a requirement for him to register under the SORA. He claims that because he did not enter a plea and the trial court in Florida did not enter a judgment of conviction against him, he cannot be considered to be a “convicted sex offender” who must register as such.

The Supreme Court of Kings County ordered that a hearing be conducted to determine the question of whether or not the 18-year old was properly notified by the Board that he must register. The Board did not grant the 18-year old offender a hearing. Instead, it began a new proceeding to determine if he needed to register. In January 2011, the Board issued a second determination that the man was a convicted sex offender who must register under the SORA as a sex offender in New York.
The 18-year old appealed the Board’s order requiring him to register. A Queens Sex Crimes Lawyer sai on appeal he claims the same ground: that he did not enter a plea of guilty or not guilty and the trial court in Florida consequently withheld a judgment of conviction. Instead, he was ordered to be placed under supervision and was registered as a sex offender in Florida.

The only question is whether or not the 18-year old can be considered as a “convicted sex offender” and as such, required to register as a sex offender in the state of New York under the SORA.
The Court upheld the determination by the Board. The 18-year old is required to register as a sex offender. The Court held that New York did not recognize “nolo contendere” pleas. In New York, even if an accused does not enter a plea of guilty or not guilty, a plea of not guilty will be entered for him and trial will ensue. The Court also held that the “nolo contendere” plea was the same as an “Alford plea” where an accused contests the existence of an element of a crime when the Court asks him if he knowingly enters a plea of guilty.

In a “nolo contendere” the accused admits nothing but does not contest the indictment. It is sufficient that he was sentenced under a conviction even when there is no memorandum or a decision in writing that he is convicted. He was sentenced to four years probation and he served it. He is considered a convicted sex offender.

The Court upheld the Board’s determination and ordered the 18-year old to register as a sex offender in New York.

Were you charged and indicted for rape in another state? Were you convicted of the rape charge in another state? Are you required to register as a sex offender in New York? YOu need representation, assistance or advice from a Kings County Rape Lawyer. A Kings County Rape attorney can explain to you your rights as well as your obligations to register under the Sex Offender Registration Act. At Stephen Bilkis and Associates, they have Kings County Rape attorneys who are willing to give you advice and assistance in this regard. The Kings County rape attorneys at Stephen Bilkis and Associates can help you present evidence to challenge the requirement for you to register as a sex offender. Come and visit the offices of Stephen Bilkis and Associates today.

March 1, 2013

Defendant Found Breaking into Vehicle with Screwdriver


A man, the herein defendant, was observed by a police officer breaking into a motor vehicle using a screwdriver. He was then arrested and indicted. A New York Criminal Lawyer said the indictment originally charged him with, inter alia, attempted grand larceny in the second degree based on an allegation that he attempted to steal property, an automobile, with a value of more than $1,500. However, this charge was incorrect, inasmuch as the attempted grand larceny in the second degree, pursuant to Penal Law, requires an allegation that the property exceeded $50,000 in value. Thus, shortly before trial commenced, the prosecutor moved, without any objection by defense counsel, to amend the indictment to charge attempted grand larceny in the third degree on the basis that the defendant attempted to steal property valued in excess of $3,000. The proposed amendment was legally correct and conformed to the evidence and the instructions presented to the Grand Jury. However, although the court indicated that it would grant the motion, only the accusatory portion of the count was amended from attempted grand larceny in the second degree to attempted grand larceny in the third degree; the factual portion alleging that the value of the subject property exceeded $ 1,500 remained unchanged, and therefore, the count was still incorrect. Thereafter, on 8 August 1995, the Supreme Court of Queens County rendered judgment convicting him of attempted grand larceny in the third degree, criminal mischief in the third degree, and possession of burglar's tools, upon a jury verdict, and imposing sentence.
Consequently, the defendant files an appeal from the said decision.

The Ruling of the Court:

Although the court's decision to amend the indictment to conform to the proof before the Grand Jury was not improper, the partial amendment which actually occurred created an inconsistency between the accusatory portion and the factual portion of the attempted grand larceny count. A New York Criminal Lawyer said it is a well established is the rule that where such a conflict exists, the factual portion of the count is controlling. Here, since the factual portion of the amended count only made out the offense of attempted grand larceny in the fourth degree, the defendant could not be convicted of the greater crime of attempted grand larceny in the third degree because the amended count did not allege the correspondingly higher monetary requirement for that offense. A New York Sex Crimes Lawyer said the trial evidence failed to persuasively establish that the monetary value of the subject automobile exceeded $3,000 in accordance with the court's instructions to the jury; thus, the conviction of attempted grand larceny in the third degree cannot stand. Nonetheless, since the evidence clearly does support a finding that the value of the automobile exceeded $1,000, the court finds that the conviction of attempted grand larceny in the third degree must be reduced to attempted grand larceny in the fourth degree. Additionally, a New York Drug Possession Lawyer said that since the evidence failed to establish that the amount of damage which the defendant intentionally caused to the vehicle exceeded $250 so as to sustain his conviction of criminal mischief in the third degree, the court also finds that the conviction must be reduced to criminal mischief in the fourth degree, which requires no proof of value. There is no need to remit the matter for resentencing since the defendant has already served the maximum time to which he could have been sentenced on his conviction of the reduced offenses.

On the remaining contentions of the defendant, the court finds them to be either unpreserved for appellate review or bereft of merit.

In sum, the judgment is modified, on the law, by reducing the conviction of attempted grand larceny in the third degree to attempted grand larceny in the fourth degree, and reducing the conviction of criminal mischief in the third degree to criminal mischief in the fourth degree; as so modified, the judgment is affirmed.

Queens County Criminal Defense Lawyers at Stephen Bilkis & Associates are highly trained and exceptionally skilled. Contact us now for the best legal services from the best legal professionals in the country. We have free consultations where you can speak with any of our specialized legal counsels like our Queens County Grand Larceny Attorneys, among others.

March 1, 2013

Defendant Claims an Error was Made in Sentencing

The petitioner is a federal prisoner who has petitioned to have an error of law in the calculation of his sentenced based on a Supreme Court Decision that interpreted sentence guidelines. This decision was made eleven years after the defendant was sentenced.

A New York Criminal Lawyer said the issue before the court is whether the savings clause permits a federal prisoner to challenge his sentence in a habeas corpus petition when he could not raise that challenge in motion because of the bar against successive motions.

Petitioner’s Argument

The petitioner, who was sentenced eleven years ago, insists that he has the right to have errors in the calculation of their sentencing corrected no matter how long it has been since the sentences were imposed.

Criminal History

The court must look at the criminal history of the petitioner in regard to this case. The petitioner was a drug dealer that worked out of his car in a high crime area of the city. Two police officers were in the area where the defendant was parked conducting surveillance.

At around 9:30 in the morning the officers saw the defendant stop his car and allow a man to get in. The man appeared to give the defendant money and in exchange received some rocks of crack cocaine. A New York Drug Crime Lawyer said that not long after the man left the car another man entered the car and another drug deal was conducted. It was at about this time that the officers saw a patrol car in the area and provided the license number for the car. The computer check showed that the license came back to a different make and model of car. The defendant was on the move at this time and the officers trailed him. The defendant pulled into a convenience store. The officers approached the defendant’s car and he attempted to flee on foot, but was captured.

The officers then discovered that the defendant was not alone in the car. His five year old daughter was along for the ride. The young child was in the car at the time the drug deals took place and the defendant left her there when he tried to flee from the officers on foot.

The officers asked to see the registration of the vehicle and the defendant opened the glove box. When he did this, a clear bag filled with what appeared to be cocaine fell out. He hurried up and put the bag back into the glove box.

The officers arrested the defendant and searched the car. During the search the officers found 67 grams of crack cocaine and 2 grams of powdered cocaine. A Queens Drug Possession Lawyer said there were 40 ring baggies that contained 111 grams of marijuana.

This was not the first time that the defendant had been caught committing crimes.

Case Discussion and Decision

The issue before the court is whether or not the defendant should be able to reargue his sentencing that took place eleven years before.

A Nassau County Drug Crime Lawyer said the court has reviewed the laws at hand and determined that a federal prisoner cannot argue for a new sentence when this much time has passed and when his sentence has occurred before the new law was passed. The petition is denied and the defendant will serve his full sentence.

February 28, 2013

Defendant Questions Court Jurisdiction

The Facts of the Case:

Defendants stole people's identities, committed bank fraud when opened fraudulent bank accounts in the victims' names, and transferred money from the victims' legitimate bank accounts to the fraudulent ones they controlled from an extensive enterprise which they oversaw. Thus, a New York Criminal Lawyer said they were indicted, among other things, eight incidents of grand larceny in the second and third degrees, based upon the transfer of funds from five separate legitimate bank accounts into five separate fraudulent accounts, after which the stolen funds were withdrawn; three instances of grand larceny in the second degree, based upon the deposit of stolen checks issued to an advertising firm into a fraudulent account defendants had opened in the firm's name in order to steal the funds. Count one of the indictment charged defendants with grand larceny in the first degree which requires that the stolen property's value exceed $1 million. Thereafter, on 2 November 2006, the Supreme Court of New York County rendered judgment convicting each defendant, after a jury trial, of grand larceny in the first degree, grand larceny in the second degree (four counts), grand larceny in the third degree (seven counts), forgery in the second degree (seven counts), criminal possession of a forged instrument in the second degree (eight counts), identity theft in the first degree (six counts) and scheme to defraud in the first degree, and sentencing defendant-one to an aggregate term of 10 to 25 years and sentencing defendant-two to an aggregate term of 12½ to 25 years.

Defendants questioned the court’s decision and claim that their convictions for first degree grand larceny should be vacated because the prosecution achieved the statutory monetary threshold by improperly aggregating the amounts taken from five individuals on eight different occasions and one advertising firm on three different occasions. A New York Criminal Lawyer said the People oppose defendants’ contention and argue that the aggregation was proper because defendants' thefts were made pursuant to a single intent and one general fraudulent plan.

Defendants also raised the issue of jurisdiction and questioned the court’s fact-finding procedures.

The Ruling of the Court:

On the issue of the grand larceny first degree conviction, the Court of Appeals had the occasion to rule in one case that aggregation was permissible and that the People may prosecute for a single crime a defendant who, pursuant to a single intent and one general fraudulent plan, steals in the aggregate as a felon and not as a petty thief. Here, the court finds that the record does not support the People's theory. It must be noted that defendants stole money from the bank accounts of five individuals after creating fraudulent checking accounts in the victims' names and that they fraudulently opened a bank account in an advertising firm's name, and then deposited checks stolen from that firm and withdrew the funds. A New York Drug Possession Lawyer said the transactions that the prosecution sought to aggregate occurred in different boroughs over several months and in a variety of ways, including ATM withdrawals, clothing purchases, and a wire transfer of funds to a jewelry store. Clearly, as the thefts in issue did not occur at the same time and place, and were not otherwise shown to have been committed pursuant to a single intent and a common fraudulent scheme, the first count of the indictment charging defendants with grand larceny in the first degree must therefore be dismissed.

On the issue that the trial court lacked geographic jurisdiction on most of the counts charged, well settled is the rule that a defendant has the right at common law and under the State Constitution to be tried in the county where the crime was committed unless the Legislature has provided otherwise. Nonetheless, unlike territorial jurisdiction which goes to the very essence of the State's power to prosecute and which may never be waived, questions relating only to the proper place for the trial can be waived. Failure to request a jury charge on venue amounts to a waiver. While defendants argued in their motion to dismiss at the close of the People's case that the trial court lacked jurisdiction as to the fraudulent bank accounts opened in Brooklyn, they failed to request a jury charge on this issue. This is tantamount to a waiver of the issue. Thus, the court declines to review it in the interest of justice.

On the issue that the court's fact-finding procedures were inadequate to establish that defendant-two was malingering, this claim was not preserved. Thus, the court must also decline to review it in the interest of justice. A New York Sex Crimes Lawyer said as an alternative holding, the court rejects it on the merits on the ground that there exists on the record that said defendant waived or forfeited his right to be present during a portion of the trial.

On the remaining contentions of defendants, the court finds them to be without weight and does not merit a discussion.

In sum, the court finds no basis for reducing the sentences on the remaining convictions. The judgment is thus unanimously modified, on the law, to the extent of vacating the convictions of first degree grand larceny, and dismissing that count as to both defendants, and affirmed as to the other convictions.

New York City Bank Fraud Lawyers are what you need when faced with a situation like the above. Contact us at Stephen Bilkis & Associates for the best ones and consult with us for free. We have exceptional New York City White Collar Lawyers all set to assist you with your legal battles.

February 27, 2013

Court Maintains that Grand Larceny Must be Proven Beyond a Reasonable Doubt

The Facts of the Case:

A New York Criminal Lawyer said on 16 May 1984, defendant was convicted by the County Court of Nassau County of grand larceny in the second degree (three counts), grand larceny in the third degree, petit larceny, commercial bribing or bribery in the first degree and scheme to defraud in the first degree or bank fraud, upon jury verdicts, and attempted grand larceny in the second degree (three counts), upon his pleas of guilty.

Defendant then filed an appeal from the aforesaid six (6) judgments of criminal convictions and contends that the Attorney-General was not properly authorized to conduct Grand Jury proceedings in accordance with Executive, and that the additional Grand Jury which returned the indictments against him was not impaneled in accordance with the rules of the court.

The Issues of the Case:

The first issue that must be resolved by the court is whether or not there was a violation of the Executive Law when the request for investigation and prosecution was made and signed on behalf of the Superintendent of Insurance. A New York Criminal Lawyer said the second issue is whether or not it was improper for the County Court Judge to issue an order authorizing the impaneling of an Attorney-General's Grand Jury. Lastly, the third issue is whether or not every theory or definition of larceny outlined in Penal Law which was charged to the jury must be sustained by the evidence in order to support defendant’s conviction for grand larceny in the second degree; along with this issue is the argument that one of the four theories so charged was not established by the evidence, that a criminal conviction must be reversed where the jury may have determined guilt based upon a theory not supported by the evidence; and that there was insufficiency of the evidence concerning the second degree grand larceny by bad check.

The Ruling of the Court:

The court finds that the defendant's arguments are insufficient to require a dismissal of the six indictments upon which he was convicted.

First, under the Executive Law, the Attorney-General has the power and authority to investigate and prosecute the alleged commission of any indictable offense or offenses in violation of the law in relation to any matters connected with the Insurance Department upon request of the Superintendent of Insurance. This provision should not be construed strictly, but read in a sense to accomplish the purpose intended. Here, the request in issue appears on the letterhead of the Deputy Superintendent and General Counsel to the Insurance Department. A New York Drug Possession Lawyer said the printed name and title appears at the closing of the letter, followed by the signature written for the superintendent. In the absence of any mandated form in the Executive Law for such requests, there was sufficient authorization in the Insurance Law for the form used. Insurance Law provides that any order of the Superintendent which must be in writing may be signed by the superintendent or by his authority. In this case, the request at issue is presumptively by the superintendent's authority, as a presumption of regularity is applicable to all official acts of individuals functioning under an oath of office.

Second, there was no violation of any statute when the County Court Judge issued an order which authorized the impaneling of an Attorney-General's Grand Jury. Although not in strict compliance with Appellate Division, Second Department Rule which permits additional grand juries to be drawn and impaneled upon the order of the administrative judge having jurisdiction over the courts in each county, the order in controversy was in substantial compliance with said rule. Here, the Administrative Judge of Nassau County, by written directive in the form of an Interdepartmental Memo, delegated the authority to impanel additional Grand Juries, not to exceed six in number, to the Administrative Judge of the County Court on the same date that the court rule became effective. Although the directive did not take the form of an order, it is a mere technical defect. Defendant does not claim any prejudice from the administrative procedure employed. The purpose of the law which permits the Appellate Division of each judicial department to adopt rules governing the number and terms of which Grand Juries shall be drawn was for a more flexible administrative approach. If strict compliance was to be observed, it would defeat that purpose and elevate form over substance. It must be noted here that there was no danger of prejudice from a Vest Pocket Grand Jury, as the extension of an existing Grand Jury was not in issue.

Third, the court finds that each of the four theories of larceny upon which the jury was instructed was proven beyond reasonable doubt. A New York Sex Crimes Lawyer said that Penal Law provides that a person is guilty of grand larceny in the second degree when he steals property with a value in excess of $1,500 by committing the crime of issuing a bad check; and the crime of issuing a bad check or a person is guilty of issuing a bad check when as a drawer or representative drawer, he utters a check knowing that he or his principal, as the case may be, does not then have sufficient funds with the drawee to cover it, and he intends or believes at the time of utterance that payment will be refused by the drawee upon presentation, and payment is refused by the drawee upon presentation. Here, the circumstantial evidence presented was sufficient to establish, beyond a reasonable doubt, defendant's knowledge of insufficient funds at the time of utterance. In fact, a representative of an Automobile Insurance Plan testified that in January 1981 the plan's certified check requirement was reimposed upon defendant's multiple brokerage corporations due to the number of checks returned unpaid by the drawee banks. Notwithstanding that defendant had been placed upon the certified check requirement several months before, and that the requirement had been lifted based upon defendant's assurances that no additional checks drawn after 1 October 1980 would be returned for insufficient funds, defendant's various corporate checks continued to be dishonored. Evidences of approximately 1,000 dishonored checks dated 7 October 1980 through 25 May 1981 returned to the plan by insurance carriers were presented. The checks were drawn on an almost daily basis throughout the period, and, accordingly, the inference that utterance of new checks was occurring simultaneously with dishonor of older checks is compelling and inescapable. On the basis of the dishonored checks alone, to conclude that defendant was unaware of insufficient balances is simply absurd and illogical. Moreover, representatives of the three insurance carriers named in the indictment as victims of defendant's larceny testified to amounts unrecovered by reason of the dishonored checks, viz: a collection clerk of insurance company-one testified that defendant's checks in the amount of $5,000 were returned unpaid for insufficient funds or account closed; a supervisor of insurance company-two testified to checks totaling $16,581.30 returned unpaid after deposit; and an employee of insurance company-three testified that checks totaling between $27,000 and $28,000 were returned unpaid. Photocopies of the dishonored checks were introduced into evidence.

Furthermore, defendant's employees testified that he was kept informed of daily bank balances, that checks were issued upon insufficient funds, and that defendant's authorization was required to issue checks. Undoubtedly, the totality of the circumstantial evidence is indeed sufficient to establish defendant's guilt of grand larceny by bad check beyond a reasonable doubt.

On defendant's remaining contentions, the court has considered them but finds them either without merit or unpreserved for review.

In sum, the judgments are affirmed, and the matter is remitted to the County Court of Nassau County for further proceedings.

The best Nassau County White Collar Crime Lawyers can be found at Stephen Bilkis & Associates. Contact us now for a free consultation and discuss with us your legal problems. Our Nassau County Bank Fraud Lawyers, and the like, are at your service and all set to give you the assistance that you need and deserve.

February 26, 2013

Court Finds Scheme to Defraud Regarding DEC Permits

A New York Criminal Lawyer said the counts charge the defendants in conjunction with payments made by several corporation/parties. It is the theory of the prosecution that criminal liability attached to the actions of the defendants because the money which the defendants obtained as a result of the transactions involving several corporation / parties was paid as a result of either trick or device, false promise, or some combination of both.

In support of this contention the District Attorney adduced evidence before the grand jury to the effect that the defendants either acting directly or through others, made both oral and written presentations to the effect that their new process made "tremendous steps" toward reducing the impact of underground tank discharges so as to protect "our land, air and water" and to promote their services as "today's solution to yesterday's pollution".

Upon examination of the record the court ruled that these generators only sought a disposition of their P.C.S. which would absolve them from liability both in terms of their obligation to remove the material from their premises pursuant to E.C.L. Article 17 Title 10, (CERCLA) 42 U.S.C. 9601 et seq. and other such similar laws and at the same time avoid the continuing sanctions pursuant to these laws which could follow if the material, having been taken off the sites owned or controlled by the generators, was improperly re-introduced into the waste stream.

A New York Criminal Lawyer said the court further ruled that this is not to say that deceit and misrepresentations by the defendants in connection with the genuine concerns of the generators relating to potential liability on their part for the malfeasance or nonfeasance of the defendants could not, under any circumstances, give rise to criminal liability on a grand larceny theory. It is only to say that on this record, the only viable larceny theories pertaining to these counts would necessarily involve material misrepresentations and false promises which would go directly to the civil, administrative and criminal liability of the generators or, at the very least, substantially mislead them as to the potential parameters of the same.

The mere fact that some or all of the defendants may have operated at afacility in violation of the terms and conditions of their D.E.C. permits and associated consent orders does not, ipso facto, constitute a material misrepresentation or false promise giving rise to criminal responsibility, sounding in grand larceny, no matter that such violations may give rise to civil, criminal or administrative law liability on the part of the defendants in other contexts.

A New York Drug Possession Lawyer said this is so because improprieties by the defendants in the course of their operation with respect to the rules and regulations of the D.E.C. would not necessarily expose the generators to liability of any kind so long as it could not be shown that the P.C.S. produced by them had improperly re-entered the waste stream.

The count of scheme to defraud is applicable to the several named defendants in that they are charged with engaging in a scheme constituting a systematic ongoing course of conduct with intent to defraud ten or more persons by false or fraudulent pretenses, representations or promises, and did so obtain property from one or more persons.

There is insufficient evidence to conclude that these representations attributed to the defendants concerning "the tremendous steps" which the defendants were supposedly making to protect "our land, air and water" were material. These claims were in the nature of public relations rhetoric and this record cannot sustain any other interpretation but that they were extraneous and irrelevant to any decision making process which ultimately led to the inclusion of the facility in the chain of contractors and subcontractors who were associated with the removal and disposition of any P.C.S.
Further, so much of the allegations in this count pertaining to the dumping of 55 gallon cans containing untested liquids by employees of the facility, even if such activities amounted to violations of other laws or regulations, are irrelevant to the legal position of any of the defendants vis-a-vis the supposed victims of the larceny scheme inasmuch as these activities could have no impact on the ultimate liability of the "victims" even under the strict liability imposed by E.C.L. Article 17, Title 10 and (CERCLA) 42 U.S.C. 9601 et seq.

In addition, a New York Sex Crimes Lawyer said there is no competent proof in the record to substantiate the contention of the District Attorney that waste obtained from any particular generator was either used as backfill, or spread out on the ground at the facility at the direction of any of the defendants.

Our New York Grand Larceny Lawyers from Stephen Bilkis and Associates fully understand how difficult it is to be deprived of one’s right without proper basis. It provides professional legal service within New York Metropolitan area including Corona, New York.

February 25, 2013

Defendants Allege Unlawful Rent Increase

The charges arose from alleged unlawful rent increases obtained from the New York Temporary Housing Rent Commission by the defendant as one of the owners or managers of a rent controlled apartment house property in Mount Vernon, New York, by falsely stating, or by aiding, abetting and inducing the false statement, in a verified application, that he and they incurred stated expenses for the installation of certain kitchen equipment, which expenses were in excess of the actual cost and consequently false.

A New York Criminal Lawyer said as evidenced adduced showed that the tenants in question paid the excess increase in rents and thus parted with their property (money) in reliance upon the false statements made by the defendant and his co-owners to the Rent Commission. Under the Rent Control Law, the tenants and their landlords were not free to negotiate and adjust rents by direct action--the Rent Commission became the interceding agent for the tenant, who became virtually the ward of the Commission in the tenant-landlord relationship. It is clear from the evidence that defendant and his co-owner defendants had deliberately set out to exploit this pattern of protectorship, by means of the falsely inflated bill device supporting his and their applications for increases in rents.

Thus, by defrauding their tenants' agent and protector, they accomplished their primary criminal objective of defrauding their tenants. Defendant knew that if he and his co-owners sent false bills to the Rent Commission it would act upon their applications as the assertion of honest claims against their tenants for increased rents. He further knew that if, upon review of the applications and the false supporting documents, the Commission approved same in reliance upon such false representations, it would do what he and they intended it to do, viz., issue the Orders for increases in the maximum legal rents, with which orders the tenants would comply; and indeed they did, and thereby parted with property they would not have otherwise parted with.

A New York Criminal Lawyer said the defendant contends that the four counts charging him with the crime of conspiracy to commit the crimes of perjury, offering false or forged instruments for filing, grand larceny and forgery, are based on facts which are legally insufficient to constitute the crimes charged.

Defendant contends: 1. That the crimes he allegedly conspired with others to commit being insufficiently established as a matter of law, the conspiracy counts based on his having so conspired are necessarily also without factual and legal support; and 2. A New York Drug Possession Lawyer said that the uncorroborated accomplice testimony on which these counts rest was legally incompetent to sustain the conspiracy counts.

As to the first contention, the court ruled the sufficiency in law of the counts charging perjury, grand larceny by false pretense and forgery having been herein sustained, the legal sufficiency of the conspiracy counts is likewise sustained as to those three categories of crime charged. As to the second count of Indictment No. 20416, charging violation of Section 2051, Penal Law, the court has determined that count to be insufficient in law, which must necessarily determine the conspiracy counts insufficient in law and they must be dismissed with respect to that crime only.

As to the second contention that the accomplice testimony against defendant was uncorroborated and therefore legally [41 Misc.2d 886] incompetent, the court stated that such testimony was corroborated by other and independent evidence tending to connect this defendant with the commission of the conspiracies charged.

The court found no merit in defendant's final contention that the conspiracies, if any, took place in Bronx County where defendant had his office, and that the indictments charging conspiracy are therefore jurisdictionally defective. It is clear from the indictments and from the evidence before the Grand Jury that the overt acts in furtherance of the conspiracies charged were taken both in Bronx and Westchester Counties, and also that the conspiracies continued up to about July 1, 1961 when defendant and his co-owners conveyed title to the apartment property here involved.

A New York Sex Crimes Lawyer said that pursuant to Section 134 of the Code of Criminal Procedure, when a crime is committed partly in one county and partly in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county.

The Court having inspected the Minutes of the Grand Jury, and in view of the several determinations herein made, defendant's motions to inspect the Minutes are denied. His motions to dismiss the indictments as insufficient in law are likewise denied, except that his motions to dismiss are granted as to the Second Count of Indictment No. 20416 (Violation of Section 2051, Penal Law), and also as to the Conspiracy Counts in Indictments Nos. 20416, 20418, 20419 and 20420, to the extent only that such counts charge conspiracy to commit the crime of offering false or forged instruments for filing or recording in violation of Section 2051, Penal Law.

Stephen Bilkis and Associates with its New York Grand Larceny Lawyers have expertise on cases similar to that tacked above. It has offices within New York Metropolitan area where you can visit to discuss the technical issues.

February 24, 2013

Defendant Charged with Assault in Times Square Incident

Defendant was indicted on two counts of assault in the second degree, one count of robbery in the third degree, and one count of reckless endangerment in the first degree based on an incident early New Year's morning 1985 near Times Square.

A New York Criminal Lawyer said it was argued that defendant removed the knapsack from the person of the unconscious woman lying on the sidewalk without the use of force--a grand larceny, not a robbery. Penal Law § 155.30(5) provides:
A person is guilty of grand larceny in the third degree when he steals property and when * * * the property * * * is taken from the person of another.

Accordingly the People requested that the court charge the jury that it could find defendant guilty of assault in the second degree under the second count of the indictment if it found that he caused physical injury to the police officer in the course of, or immediate flight from, either the felony of robbery or grand larceny, as set forth in Penal Law § 155.30(5). Defendant objected on the ground that the court was bound to the exact language of the indictment.

A New York Criminal Lawyer said the court stated that because an allegation of a specific underlying felony goes beyond the material elements of the crime of felony assault (see Section I, supra ), the People are not held to the same strict limitations as is the case when specific language in an indictment goes to a material element of the crime. (Cf. People v. Kaminski, supra.) However, under the aforesaid principle of notice of theory, a specific allegation as to an underlying felony does require some limitation. For example, the Barnes footnote, supra, held the prosecution to the general theory of larceny but not to a specific larceny statute or subdivision thereof. The People had only to prove "an intent to appropriate property." (Id.) Similarly here had the People requested instructions that the jury could find the underlying felony to be assault or rape or sale of narcotics, this court would have sustained defendant's objection on the grounds of change of theory resulting in a lack of the requisite notice.

But, according to the court this defendant suffered no prejudice or surprise from the Court's instructions that the jury could consider either robbery or grand larceny in the third degree (Penal Law § 155.30[5] ) as an underlying felony. A New York Drug Possession Lawyer said a separate count of the indictment, defendant was charged with robbery in the third degree in that he "forcibly stole certain property from [the young woman] to wit, personal property." Thus defendant was sufficiently on notice that the People intended to prove that he wrongfully took the knapsack from the person of the young woman. As in Spann, there is no doubt that the crime charged was the same criminal transaction for which defendant was indicted.

The court held that defendant was not in any way prejudiced as borne out by the fact that he took the stand to testify that he knew nothing of the alleged knapsack or its taking, only that there was a commotion on the street during which he was attacked by a man who he later learned was a police officer. Defendant would not have been any better served had the indictment specified grand larceny, as well as robbery, as the underlying felony.

Certainly the court's charge did not alter the People's theory. An indictment normally "provides sufficient notice of any lesser included crimes." Here, a New York Sex Crimes Lawyer said that while grand larceny is not technically a lesser included offense of the underlying felony of robbery, under the facts and circumstances of this case, the prosecution's theory was not altered by the court's jury instruction. The People's theory was larceny, robbery being a forcible larceny. Under the circumstances of this case the only difference between the two submitted underlying felonies was the element of force. Eliminating that element by submitting grand larceny does not amount to a change of theory.

Thus to the extent that it could be argued that the jury instruction was tantamount to an amendment of the indictment, it was authorized by CPL 200.70(1) since it did not change the theory of the prosecution or otherwise prejudice the defendant. Even though the People did specify the particular underlying felony in the indictment as a robbery, the facts and circumstances of this case which gave rise to the allegation of robbery also support a jury instruction as to another underlying crime, to wit, grand larceny in the third degree pursuant to Penal Law § 155.30(5). Such instruction was warranted and did not in any way prejudice defendant. This instruction requested by the People was properly submitted to the jury and accordingly defendant's objection to the submission of that portion of the charge was overruled.

We understand how difficult it is to suffer from one’s wrongful act. Stephen Bilkis and Associates with its New York Grand Larceny Lawyers can sustain your rights with its pool of expert attorneys. It has offices within New York Metropolitan area, including

February 21, 2013

Court Decides Domestic Violence Charges

First Case:

On or about 8 July 2008, a Family Court in Bronx County found that respondent mother permanently neglected her children. The judgment was appealed and the court now affirms said order, without costs.

Here, a New York Criminal Lawyer said the court finds that the neglect findings are supported by clear and convincing evidence that petitioner made diligent efforts to assist a meaningful relationship between respondent mother and her children and that, despite these efforts, respondent mother failed to plan for the children's future. Petitioner's efforts included providing numerous referrals to programs tailored to respondent mother's changing needs and consistently following up with respondent mother on such critical goals as completing a mental health evaluation and domestic violence counseling. Petitioner's focus on the issues of health and domestic violence was the most appropriate course of action. However, respondent mother still refused to complete these critical components of the service plan. The respondent mother’s her argument that petitioner failed to assist her with such other service plan goals as obtaining suitable housing and a source of income is belied by the records of the case. Evidence was presented that petitioner indeed made referrals in these areas and monitored respondent mother’s changing housing and employment circumstances. It was respondent mother’s own lack of meaningful cooperation with petitioner that hindered her accomplishment of these goals.

Second Case:
On 15 September 2010, the Family Court of Queens County found that respondent father had neglected his child, and on 27 October 2010, the same court found that respondent father, upon the fact-finding order and after a hearing, should be placed under the petitioner's supervision for a period of six months. Thus, an appeal from the said orders of the Family Court was filed and the court now finds that the appeal from the fact-finding order must be dismissed, without costs or disbursements, as the fact-finding order was superseded by the order of disposition; that the appeal from the order of disposition which placed the father under the petitioner's supervision for a period of six months must be dismissed as academic, without costs or disbursements; and that the order of disposition must also be affirmed insofar as reviewed, without costs or disbursements.

First, the appeal from so much of the order of disposition as placed the appellant, respondent father, under the supervision of the petitioner for a period of six months must be dismissed as academic, as that portion of the order has expired by its own terms. However, since the adjudication of neglect constitutes a permanent and significant stigma that might indirectly affect the appellant's status in future proceedings, the appeal from the order of disposition, which brings up for review the finding of neglect, is not academic.

Second, the rules provide that at a fact-finding hearing in child abuse (domestic violence) and/or neglect proceeding pursuant to Family Court Act Article 10, a petitioner has the burden of establishing, by a preponderance of the evidence, that the subject child has been abused and/or neglected. Here, the evidence adduced at the hearing established that the father, while holding the subject child, who was then less than two years old, hit, shoved, and screamed at the mother. The evidence further indicated that the father had previously committed acts of domestic violence against the mother, including slapping her, and that some of those incidents occurred in the presence of the child. While an isolated incident of domestic violence outside the presence of a child is insufficient to establish neglect, the incident of domestic violence at issue here was neither isolated nor did it occur outside the presence of the subject child. A Bronx Criminal Lawyer said the child's physical, mental, or emotional condition was clearly in imminent danger of impairment as a result of the father's conduct and this was established by the petitioner, by a preponderance of the evidence.

Stephen Bilkis & Associates are the best in the legal profession. The skill and competence of our team can assist you whether you have been charged with sex crimes, abuse or drug possession. Call us for a free consultation.

February 21, 2013

Defendant Brings Omnibus Motion to Suppress Identification Testimony

This is an appeal by the defendant from a judgment of the County Court, Dutchess County, rendered February 13, 2008, convicting him of grand larceny in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

A New York Criminal Lawyer said that, the defendant's conviction arises from two incidents in which he allegedly stole merchandise from a Home Depot store. The defendant was charged with one count of grand larceny in the fourth degree, based, inter alia, on his having taken property with a value of over $1,000 in an "ongoing course of conduct and common plan and scheme." A Dutchess Grand Larceny Lawyer said that, after a pretrial hearing, the County Court denied that branch of the defendant's omnibus motion which was to suppress identification testimony. At the hearing, a New York Criminal Lawyer said that the County Court also ruled that if the defendant chose to testify at trial, the prosecutor could impeach him with evidence of the fact of one felony and seven misdemeanor convictions, but could not elicit the specific charges of which the defendant had been convicted, nor the underlying facts leading to the prior convictions.

At trial, the defendant's nephew testified that he accompanied the defendant to the store on two dates. A New York Drug Possession Lawyer said the nephew testified that on the first date, he and the defendant placed a television on a cart. While the defendant spoke to a store employee his nephew wheeled the cart out of the store, and then the defendant followed. A store cashier testified that she witnessed this occurrence, and she identified the defendant at trial. The cashier also testified that after the defendant left the store, she looked up a price of televisions on a display, since she "recognized the front of the box" of those televisions. The cashier indicated that the sale price of the televisions on the display was $1,999.97. The cashier did not know the model number or name of the television that the defendant allegedly took. The People introduced no further evidence as to the specific type of television that was allegedly taken, nor as to the price of that television. The defendant's nephew testified that on the second occasion, he and the defendant placed various items of merchandise in a shopping cart, wheeled that cart to a store exit, and placed those items beneath a gap in a fence leading to the parking area. A store "loss prevention investigator" testified to having witnessed those events, and identified the defendant at trial.

A New York Sex Crimes Lawyer said that, the County Court instructed the jury, inter alia, that the defendant was charged with having committed one count of grand larceny in the fourth degree based on having, in concert with another person, wrongfully taken, retained, or withheld from its owner items with a value exceeding $1,000 over the course of the two incidents. The jury convicted the defendant of grand larceny in the fourth degree.

The issue in this case is whether defendant is entitled to his omnibus motion of suppressing the testimony of the witness.

The County Court properly denied that branch of the defendant's omnibus motion which was to suppress identification testimony. Initially, contrary to the People's contention, the defendant sufficiently preserved his contentions for appellate review in this regard. However, the People established in the first instance that the photo array was not improper, and the defendant failed to establish that the procedure was unduly suggestive. In particular, although there was conflicting evidence as to whether the first witness may have been present in the room when the second witness viewed the photo array, that evidence would not, by itself, taint the second witness's identification testimony, absent evidence of communication between the two witnesses, which was not present here. The County Court also did not err in determining that the photos of the fillers used in the array sufficiently resembled the defendant's photo, and that the array was not unduly suggestive. Further, there is no merit to the defendant's contention that the fact that each witness was shown only a single array of six photos, by itself, rendered the photo array procedure improper

The Court held that the defendant's challenge to the County Court's ruling lacks merit. The defendant's past crimes were relevant to the issue of credibility because they demonstrated the defendant's willingness to deliberately further his self-interest at the expense of society. Moreover, the prosecutor was not permitted to inquire about the specific nature of the prior charges of which the defendant was convicted, nor the underlying facts of those prior crimes. Under these circumstances, the County Court struck an appropriate balance between the probative value of the defendant's prior crimes on the issue of his credibility and the possible prejudice to the defendant, and the defendant failed to sustain his burden of "demonstrating that the prejudicial effect of the evidence of his prior convictions so outweighed its probative worth that its exclusion was warranted".
The defendant received the effective assistance of counsel under both the state and federal standards. The defendant failed to preserve for appellate review his contentions that there was legally insufficient proof of his identity or that he completed the takings of the property as charged. In any event, those contentions are without merit. In addition, upon our independent review pursuant to CPL 470.15(5), the court is satisfied that the jury's findings as to the defendant's identity and as to his completion of the crimes were not against the weight of the evidence. However, there was legally insufficient proof as to the value of the property taken. The defendant was charged with a single count of grand larceny in the fourth degree, based on his having allegedly taken property with a value of over $1,000 in an "ongoing course of conduct and common plan and scheme" on the dates of the two incidents. However, the evidence was not sufficient to prove that the television allegedly stolen in the first incident had a value of over $1,000, as there was insufficient proof as to the specific type of television that was taken. It is undisputed that the value of the goods taken in the second incident was less than $1,000.
Further, there was insufficient proof that the two incidents, together, constituted a common scheme or plan. Grand larceny "may be charged as a series of single larcenies governed by a common fraudulent scheme or plan" under some circumstances, where property is stolen from the same owner and place by a series of acts "pursuant to a single, sustained, criminal impulse". Here, however, the evidence was insufficient to demonstrate that the two takings of property constituted an ongoing fraudulent scheme or plan, as there was no evidence of the defendant's intent to commit fraud or of his intent to engage in a plan of continuous fraud. Therefore, the two incidents could not be considered in the aggregate for purposes of determining the value of the goods taken. Consequently, there was insufficient proof of the value of the goods to establish the count of grand larceny in the fourth degree.
However, the evidence was legally sufficient to establish the lesser-included charge of petit larceny. Accordingly, the court reduces the defendant’s conviction of grand larceny in the fourth degree to petit larceny and vacates the sentence imposed thereon. However, since the defendant has already served the maximum permissible sentence for that crime, the matter is remitted to the County Court, Dutchess County, for sentencing to time served on the conviction for petit larceny.
Accordingly, the Court ordered that the judgment is modified, on the law, by reducing the defendant's conviction of grand larceny in the fourth degree to petit larceny, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Dutchess County, for sentencing to time served on the conviction for petit larceny.
If you have been indicted for the crime of grand larceny or petit larceny, you will need to be represented by a Dutchess Grand Larceny Attorney and/or Dutchess Criminal Attorney in order to defend your case and provide the possible legal remedies available to your case. Call us at Stephen Bilkis and Associates for free consultation.

February 21, 2013

Defendant Contends Four Level Enhancement of Sentence Was Incorrect

A New York Drug Crime Lawyer said the defendant is appealing a 75 month sentence that was imposed on him when he pled guilty to being a felon in possession of a firearm. The defendant argues on appeal that the district court made an error when they imposed a four level enhancement to his sentencing. He also argues that his counsel was ineffective because they did not object to the investigation reports application and that they failed to show that the possession of a firearm did not meet the requirements for an enhancement.

Case Discussion and Decision

A New York Criminal Lawyer said in this case the court did not err in the calculation of the sentence of the defendant. When calculating a sentence based on the guideline ranges that are provided the court can apply a four level enhancement to the charge if the firearm is possessed and found to be in connection with any other felony offense.

A Nassau Criminal Lawyer said when the defendant was arrested he possessed less than an ounce of marijuana in addition to the firearm. While the marijuana possession charge does not qualify as a felony charge, the defendant had been convicted for drugs before at the felony level, which made him a classified felon at the time he was sentence.

For this reason, the court is affirming the sentence and the appeal is denied.
Stephen Bilkis & Associates is located in New York City. We have several offices around the city. Contact us at any time to set up an appointment for a free consultation with one of our experienced lawyers.

February 19, 2013

Defendant Contends Confession was Coerced

In summary, the accused was arrested for possession of a weapon and when brought to the station he asked the police officer that he would cooperate in bringing additional guns through his wife. A few hours later, he was already suffering from heroin withdrawal that prevented him to being brought to the criminal booking office. A New York Criminal Lawyer said during the course of his detention and while feeling sick due to his withdrawal from drugs, the other investigators questioned and interrogated him for the gun crime, specifically, a shooting incident. The result of which, is that he was asked to sign a waiver and was then charged and subsequently arraigned for the alleged crime of shooting that he committed.
A few days later, the offender was examined by a doctor where he was diagnosed of having heroin withdrawal. An expert in forensic psychiatry testified that the defendant suffered from opioid withdrawal where symptoms usually occur within eight to twelve hours from the last drug intake. The doctor further averred that a person having opioid withdrawal is not in his normal behavior and usually suffer severe physical conditions.

The defendant was charged with the crime for shooting the victim inside his apartment at Brooklyn. The appellant moved to suppress evidence acquired due to his unlawful detention for the charges of criminal possession of weapons and seek to repress his admissions he gave through coercive measures conducted by the police towards him during such detention.

The court considered the following factors to accept additional evidence acquired to be used as evidence in the case filed against him, namely, “the temporal proximity between the arrest and the evidence; the presence of intervening circumstances; and the purpose and flagrancy of the official misconduct.” The delivery of the guns to the detention post did not assuage the crime of illegal possession of a weapon by the defendant, thus, such evidence must be suppressed as ruled by the court. When the wife brought the guns, it was made through the instruction of the accused with the belief that he would be freed by the policemen. Since the arrest of the accused was unlawful, it follows that any evidence acquired are considered illegal, hence, must be suppressed. The prosecution failed to present any intervening circumstances that could attenuate the actuations of the felon that could warrant the inclusion of the two guns acquired as part of the evidence to be used for the gun crime charged against the accused.

A Long Island Criminal Lawyer said numerous factors were considered by the court to determine whether the defendant’s waiver of rights and admissions can be used as evidence against the latter, such as test of involuntariness if whether "self-direction is lost and compulsion of whatever nature or however infused propels or helps to propel the confession,” prolonged fatigue that could affect an individual’s judgment and will, the length of the detention and the delay in arraignment to name a few.

Applying these tests in the present case, the court noted that the admission of the defendant about the shooting incident was made when he was already detained for twenty-three hours, without enough sleep or sufficient food intakes, suffering from withdrawal symptoms of drugs, he was subjected to inquisitions by many law enforcers and his physical condition was deteriorating. Given the circumstance presented, including the testimony of the medical experts, the court supported the contention of the defendant. Therefore, it was held by the court that there was at least a reasonable doubt to question the credibility of the defendant’s admission and waiver of rights that was considered sufficient to suppress as evidence such admissions and waiver. The state, through its prosecutor, failed to establish that the felon’s acts were free and voluntary and his will unimpaired that could justify the use of his admissions and waiver before the court.

In the conduct of arrest and in carrying out the law, law enforcers are given strict and proper procedures in carrying out the same that is why presence of a lawyer is vital during the detention of individuals. Once detained, immediately contact any of our criminal lawyers here at Stephen Bilkis and Associates who could provide legal assistance whether you have been charged with drug possession, theft or sex crimes.

January 26, 2013

Court Weights Constitutionality of Sentencing for a Felony in the Third Degree

The Florida state filed an appeal placing in issue the constitutionality of the provisions of law pertaining to the inclusion of prior convictions in the charging information. This was due to the ruling of the circuit court, wherein the appellees who were charged and found guilty of petit larceny and they have already been previously convicted of such crime twice. A New York Criminal Lawyer said the court granted the motion to dismiss filed by the accused on the ground that such charges were unconstitutional which deprived the defendants’ due process and equal protection of the law. The court granted the motion, thus, the appeal was made by the state.

The issue before the court is the constitutionality of the provision of law where “upon the third or subsequent conviction for petit larceny, the offender shall be guilty of a felony in the third degree.” A New York Criminal Lawyer said this was a distinct substantive offense that can be distinguished from the statute on being considered a criminal habitual offender. Both statutory provisions provide harsher punishments for a repeated offender. As habitual offender, the previous offense shall serve as the basis of an increased penalty while the other law makes the prior offense part of the elements of the present offense charged against the felon, which must be specifically alleged and proved during trial. In the latter case, the jury must provide judgment as to the guilt or innocence of the defendant based on the existence of facts related to prior conviction or convictions and return a verdict as to both.

The court pointed out several cases to sustain the action of the trial judge in submitting before the jury the judgment as to the verdict of the present offense charged and as to the historical fact of prior conviction. Furthermore, a New York Drug Possession Lawyer said the jury is under obligation to come up with specific findings of the facts in said former convictions.

The appellees contended that such procedure made by the trial judge violated their fundamental rights of due process and equal protection of the law pointing out that the two laws are, in essence, the same and defendants must be accorded the identical procedural safeguards. Such as, conducting separate proceeding by the state, by a separate writing and made subsequent to finding of guilt or innocence of the accused. However, these safeguards were not found in the statute in question. The jury was presented evidence of the prior offenses of the defendants; thus, presumption of innocence was violated. This was reiterated in one case, which stated that “the State should not be permitted merely to charge an accused with the commission of a crime and buttress its current charge with a simultaneous allegation that the accused had previously been convicted of a totally unrelated crime committed years before.”

The justices sided with the contention of the appellees that, in a constitutional point of view, the procedures to be followed must be in line with the protection of the fundament rights of an accused. A New York Sex Crimes Lawyer said that the law, as enacted by the Legislature, creating the substantive offense of “felony petit larceny” is proper; however, the court shall implement the procedure to be employed in the courts.

Thus, the court ruled that the felony petit larceny charged against the defendants can be tried in the circuit court without the presentation to the jury of the prior convictions of the accused to constitute as one of the elements in the latest offense charged and follow the procedure on criminal habitual offender.

For that reason, the order made by the trial court was reversed on appeal and the case was remanded for further proceedings applying the steps conducted for a criminal habitual offender.
If you have been previously charged and convicted of the same offense more than once, then you need to assistance of our criminal attorneys for hire at Stephen Bilkis and Associates. Being considered as a habitual delinquent would entail additional court hearings and harsher punishment that require service of an experienced criminal lawyer from our firm.

January 24, 2013

Court Discusses Act of Depraved Indifference in Murder Trial

On July 1, 2005, after spending several hours in a bar in Manhattan, at which he consumed at least six beers, the defendant attended a friend's party in Merrick in Nassau County. He arrived at the party, which consisted of a small gathering of his friends. The house where the party was being held was approximately a five-minute drive from the Meadowbrook State Parkway. At the party, the defendant was seen consuming several alcoholic drinks. Two of the defendant's friends who were at the party described the defendant as intoxicated or “buzzed.” However, neither one observed the defendant stumbling or staggering while he was dancing, nor was he observed to be slurring his words. A Bronx DWI Lawyer said that, the defendant remained at the party for 1 1/2 to 2 hours before leaving in his pickup truck. Despite having previously received offers to sleep over or utilize a designated driver rather than drive after drinking, the defendant chose to get into his pickup truck and drive while intoxicated.

A Bronx DWI Lawyer said that, the defendant was driving the wrong way in the southbound lanes of the Meadowbrook State Parkway, a limousine was proceeding south in the left southbound lane of the Meadowbrook State Parkway. The limousine encountered the pickup truck headed directly towards it just north of the Babylon Turnpike overpass. The limousine was carrying a family, consisting of their two daughters, seven-year-old and five-year-old, and the parents, back home from a wedding. The pickup truck collided head-on with the limousine, apparently having tracked the limousine's movement, crushing and killing the other passenger, decapitating the seven-year-old passenger in the limousine, and causing severe, and, in some instances, life-threatening, injuries to the remaining passengers in the limousine.

A Bronx Drunk Driving Lawyer said that, the defendant was placed under arrest at the scene, and was later informed of his arrest by the Investigator of the New York State Police. Upon being so advised, the defendant told the police that from the time he had moved to New York from Arkansas the previous October, “everything was going wrong” and “nothing he did was ever enough.” The defendant recounted to the police that he had argued with his ex-girlfriend over the phone, had financial problems, had recently lost his grandmother with whom he had been close, and was very upset, depressed, and in a “self-destructive mode.”

A Bronx DWI Lawyer said that, the jury convicted the defendant of two counts of murder in the second degree, three counts of assault in the first degree, and two counts of operating a vehicle while under the influence of alcohol. The defendant was sentenced to an indeterminate term of imprisonment of 18 years to life on his convictions of each count of murder in the second degree, a determinate term of 18 years of imprisonment plus 5 years of post release supervision on his convictions of each count of assault in the first degree, and a definite term of 180 days of incarceration on his convictions of each count of operating a vehicle while under the influence of alcohol, all terms to run concurrently. Defendant appealed from the judgment of the Supreme Court.

The issue in this case is whether defendant’s conviction was sufficiently proven.
The Court said that, contrary to the People's contention, the defendant's argument that the evidence was legally insufficient to support the convictions of murder in the second degree under Penal Law § 125.25(2) and assault in the first degree under Penal Law § 120.10(3), crimes which require proof of depraved indifference, is preserved for appellate review. Viewing the evidence in the light most favorable to the prosecution the Court finds that it was legally sufficient to support the defendant's convictions of depraved indifference murder and assault in the first degree.

Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence, the Court nevertheless accord great deference to the fact finder's opportunity to view the witnesses, hear the testimony and observe demeanor. The question of whether the defendant possessed the mens rea of depraved indifference to human life is highly fact-sensitive, requiring a case-by-case analysis. Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence. A person acts with depraved indifference if he or she does not care if another is injured or killed. Depraved indifference murder or assault differs from intentional murder in that it results not from a specific, conscious intent to cause death or injury, but from an indifference to or disregard of the risks attending defendant's conduct.

The evidence presented to the jury established that, 15 to 30 minutes before the collision, the defendant, although intoxicated, remained steady on his feet and held conversations without slurring his speech. Furthermore, the other drivers who observed the pickup truck traveling on the Meadowbrook State Parkway testified that the pickup truck maintained a steady speed, successfully negotiated the curves of the parkway, and stayed within one lane of travel, except in those instances where the defendant apparently tracked the headlights of the oncoming vehicles as they attempted to avoid the pickup truck. The testimony also established that, for the approximately 2.5 miles that the defendant was observed driving the wrong way on the Meadowbrook State Parkway prior to the impact with the limousine, the defendant passed “wrong way” signs, the back side of highway signs, at least five sets of headlights shining directly at him, at least one set of headlights suddenly veering to one side, and tail lights on the other side of the guide rail. In addition, he was confronted with a horn blaring three times and the noise of a loud motorcycle on the other side of the median strip keeping pace with him in the same direction. Given all of the foregoing evidence, it was reasonable for the jury to conclude that the defendant was aware that he was driving the wrong way and deliberately chose to continue to proceed in the northbound direction, against traffic, without regard for the grave danger to himself and others traveling on the parkway that night.

Furthermore, the defendant did not testify on his own behalf. Thus, the only manner in which the jury heard the defendant's “own words” concerning his state of mind was through the testimony of the police officers, who recounted the defendant's statement to them at the hospital, and through the defendant's letter. In that letter, the defendant admitted that he would lie to protect his friends and family and to make himself appear sympathetic and not as a “hooligan.” Despite the defendant's admission of his propensity to lie, the dissent relies upon the statements contained in this letter, written after the defendant was made aware that he was facing multiple murder and assault charges, rather than upon the defendant's earlier self-incriminating statements made to the police at a time when he did not yet realize he was facing such charges. In addition, the jury heard testimony from the prosecution's expert, a forensic toxicologist, that an average male, weighing 180 pounds and standing 5 feet, 10 inches, with a blood alcohol concentration of .28%, would necessarily have had approximately 14 “drinks” in his system, and if that average male began drinking at 4:30 P.M. and continued until 1:00 A.M. or 1:30 A.M., he would necessarily have had 20 “drinks” in his system, with a drink equaling a unit of alcohol such as 12 ounces of beer or 1 shot of liquor. The jury also heard testimony from the People's expert that a blood alcohol concentration of .28% would not prevent a person, such as the defendant, from reacting to different stimuli, such as oncoming headlights, the reverse side of highway signs, and blaring car horns, for a period of 2 1/2 minutes. The expert also stated that a person's response to stimuli would be completely shut down only if the person were rendered unconscious. The jury was also informed that an intoxicated person on an unfamiliar road confused by his or her surroundings would not be expected to maintain a steady speed and drive in a straight line, as the defendant did. Thus, the expert's testimony, which was wholly uncontroverted by the defendant, when considered with the testimony of those who observed the defendant immediately before the impact, provided a basis for the jury to reasonably determine that the defendant had the requisite mens rea to commit depraved indifference murder and assault at the time that the impact occurred.

Thus, contrary to the approach taken by our dissenting colleague, the evidence presented to the jury established that the defendant engaged in reckless conduct which created a “grave” risk of death, thereby evincing a depraved indifference to human life. Accordingly, we conclude that the People established the defendant's guilt of two counts of murder in the second degree and three counts of assault in the first degree beyond a reasonable doubt. Further, the Supreme Court properly denied the defendant's motion pursuant to CPL 330.30 to set aside his conviction on the ground that the jurors improperly considered the defendant's prior arrest for and conviction of driving while intoxicated. “Improper influence includes even well-intentioned jury conduct which tends to put the jury in possession of evidence not introduced at trial. A defendant must demonstrate that the alleged misconduct impaired his or her right to a fair trial. Accordingly, the Court held that the judgment is affirmed.

If you are involved in a DWI incident, theft or sex crimes, and been charged in Court, seek the help of a Bronx DWI Attorney in order to explain to you the nature of your case. Bronx Criminal Attorney at Stephen Bilkis and Associates can represent your case and exhaust the possible remedies available therein. Call us.

January 24, 2013

In Consecutive Sentences it Depends on Whether the Acts Were Committed with the Requisite Intent

An appeal was filed by the defendant who was convicted with the crimes of murder and criminal possession of a weapon. He alleged that the court erred in its decision to impose consecutive sentences for the indictments he committed claiming that the accused acted with a singular intent.

The Supreme Court, holding the recent decisions of the Court of Appeals, the determining factor to review the legality of consecutive sentences is “whether separate acts have been committed with the requisite criminal intent.” Consequently, the Court ruled that there was no overlap of the statutory elements of the crimes committed by the appellant, thus, affirming the lawful imposition of consecutive sentences.

A New York Criminal Lawyer said there were two resident gangs at Manhattan who had several altercations among its gang members. One group was composed of the defendant, his sibling and a friend while the other group was a street gang, whose two members were the victims in a shooting incident that caused filing of the felony case against the appellant. Several hours prior to the shooting confrontation, the two groups had encounters and thereafter physical altercations commenced among its gang members. One of the witnesses testified that she saw a gun being carried by the accused at that time of the altercation. After the lapse of a few hours, the defendant moved toward the victim, who was accompanied by other gang members. The group of the victim walked away from the offender to avoid any untoward incident. However, the defendant then took his gun from his shorts and chased down the victim and shot the two victims who died of gunshot wounds.

Thereafter, witnesses identified the felon as the one responsible for the killing of the victims, he was arrested by the police and then the jury trial commenced. The defendant was found guilty of the crimes of murder and criminal possession of a weapon. A New York Criminal Lawyer said the court sentenced him to consecutive terms of 25 years to life and 15 years for the two offenses having a total term of 40 years to life.

Upon appeal of the case made by the defendant, he claimed that the court erred in the imposition of his consecutive sentences based on the premise that there was no charge of illegal possession of weapon that was not connected with the crime of murder made by the prosecution.\
The Court based its decision on the mandatory provisions of a statute stating that “for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other.” A New York Drug Possession Lawyer said the prosecution was apt in maintaining that the primary element of murder, as defined by statute, was the resulting death of the two individuals without considerations as to the mode of killings, whether it be by shooting, stabbing or any other means employed with the use of a weapon; while the primordial consideration to be indicted of the gun crime was the actual possession of a loaded operable firearm without regard as to how it shall be used by the individual carrying the weapon. The killing and possession of firearm are considered separate and distinct acts that would constitute two separate felonies. The mere possession of a weapon is not considered necessary in the commission of murder.

Therefore, a New York Sex Crimes Lawyer said the judgment and order made by the Court convicting the defendant of the crimes of first degree murder and second degree offense for weapon possession and sentencing him to consecutive terms of 25 years and 15 years, correspondingly, was duly affirmed by the Appellate Court.

The criminal lawyers of Stephen Bilkis and Associates have already handled several cases for various criminal offenses filed before the court. If you are facing any legal disputes or criminal charges, do not hesitate to approach any of our possession of a weapon attorneys to orient you about the legal steps and repercussions of the suits or actions commenced in court.

January 23, 2013

Court Looks at Complex Resentencing Issue for Defendant

Defendant was convicted of Criminal Sale of a Controlled Substance in the Third Degree and on November 19, 2002 given an indeterminate sentence of imprisonment with a term of 2-6 years. A Bronx Drug Crime Lawyer said that, the People assert that the Defendant engaged in the sale of $350 of cocaine to an undercover police officer on two occasions and that on later date cocaine and drugs paraphernalia were recovered from the apartment where the sales took place. In addition to the instant offense, Defendant was convicted of Criminal Possession of a Controlled Substance in the Seventh Degree and sentenced to time served in 2002, convicted of Invalid Use of a Credit Card with Intent to Defraud and sentenced to time served in 1999 and convicted of Criminal Trespass in the Second Degree and sentenced to four days in jail in 1998.

A New York DWI Lawyer said that, the Defendant was initially released to parole supervision on the instant offense. Parole violation warrants were issued for the Defendant. In these warrants, it was alleged that the Defendant had used cocaine and marijuana, failed to report to his parole officer on multiple occasions, left his approved residence and failed to attend two programs required by the Division of Parole. Defendant was re-incarcerated for a parole violation and continued to be in prison at the time the instant motion was filed. Defendant has been punished for one disciplinary infraction while in prison. That was a Tier 3 infraction on December 26, 2008 for violent conduct; fighting and disorderly conduct for which he received 30 days of keep lock time.

A New York DWI Lawyer said that, while incarcerated, Defendant successfully completed the drug crime treatment program and the Shock Incarceration program. He entered the Alcohol and Substance Abuse Treatment Program ("ASAT") and continues to participate in the program, where he has received a number of positive reviews. He has received training or done work in a number of vocational areas and increased his grade levels in math and reading. Prior to prison, defendant served for eight years in the National Guard. A Bronx Criminal Lawyer said that, defendant moves to be resentenced pursuant to the Drugs Law Reform Act of 2009. That motion is opposed by the People. The People argue that the Defendant is ineligible for resentencing because he is currently incarcerated only by virtue of a parole violation. The Defendant contends that this fact does not bar resentencing.

The issue in this case is whether defendant is entitled to his motion for resentencing.
The Court said that the 2009 DLRA allows certain convicted Class B felony drug crime offenders serving indeterminate sentences imposed prior to January 13, 2005 to be resentenced to new determinate terms under the new determinate sentencing ranges created by the statute. The statute first requires a court to determine whether a defendant is eligible for resentencing. In this case, the parties disagree about whether the Defendant is statutorily eligible for resentencing in one respect.

The 2009 DLRA requires that the Defendant be in the custody of the department of correctional services to be eligible for resentencing. The People argue that because the Defendant is in custody solely by virtue of his own actions in violating parole, he should not benefit by receiving a resentence. In support of this argument, the People rely on a 2008 case and 2009 case decided by the Supreme Court. In the 2008 case, it involved an application for resentencing by two offenders under the 2005 DLRA. In the said case, the Court held that the plain meaning of the 2005 DLRA required that in order to be eligible for resentencing, a defendant could not be eligible for parole within three years of a resentencing application. A Nassau County DWI Lawyer said the People's argument in the instant matter concerns the Court's holding with respect to the second named Defendant. The defendant was originally convicted of a Class A-II felony in 1999, given a 5 year to life indeterminate sentence and subsequently released on parole. Two months after release, in 2002, he again committed a Class A-II felony for which he was sentenced to a 6 year to life term. He moved for resentencing under the 2005 DLRA for his 1999 conviction, since, given the revocation of his parole, he was now more than three years away from parole eligibility. The Court of Appeals acknowledged that he was eligible for resentencing under the literal terms of the statute. They held, however, that he was nevertheless barred from resentencing.

To allow resentencing, the Court held, would create "illogical, if not perverse results". They noted that if defendant had not committed a new crime, he would be ineligible to have his lifetime maximum sentence modified on resentencing, since he would not have been in correctional custody. The Court reasoned that "surely, the Legislature did not intend fresh crimes to trigger resentencing opportunities". The Court therefore held that "once a defendant has been released to parole supervision for a Class A-II drug crime conviction, he or she no longer qualifies for 2005 DLRA relief for that particular conviction". This Court said that, the 2008 case did not base its holding on any statutory language or legislative history relevant to the 2005 DLRA. Rather, the Court held that its construction of the statute was the most sensible one because it concluded that the Legislature could not possibly have intended a different result. The holding in the 2008 case applied the well-settled rule that a statutory interpretation which is "contrary to the dictates of reason or leads to unreasonable results is presumed to be against the legislative intent" regardless of the language of a statute or any evidence that the legislature actually intended the result reached by a court.

The Court said that, an offender who is denied parole and remains incarcerated is automatically eligible for parole within two years. Thus, an offender denied parole that remains incarcerated can never be eligible for resentencing under the 2005 DLRA because only offenders who are more than three years away from parole eligibility qualify for resentencing. As the 2008 case court explained, an offender who is re-incarcerated for a parole violation, as then was, is given a "time assessment", which is a period of time after which the offender will again be eligible for parole. In the said 2008 case, this time assessment was 5 months and 26 days. Defendant was not eligible for resentencing with respect to his initial conviction when he was initially re-incarcerated because his time assessment meant he was not more than three years away from parole eligibility when he returned to prison. He could also never again be eligible for resentencing under the 2005 DLRA with respect to his first conviction because, with respect to that initial conviction, he would be eligible for parole at least every two years.
It is not clear what practical impact the rule has had on the resentencing of Class A-II felony drug crime offenders. That is because of the three year parole eligibility rule. Mills, when contrasted with a rule which would consider resentencing eligibility only with respect to a Defendant's initial conviction, would only affect a Class A-II felony drug offender who violated their parole, was given a time assessment of more than three years and then applied for resentencing. If resentencing eligibility under the 2005 DLRA was judged only with respect to the conviction a defendant applied to be resentenced for, offenders who received time assessments of less than three years would never be eligible for resentencing regardless of the "fresh crimes" rule.
In sum, the 2008 case Court announced a rule which was broader than it might have chosen to adopt given the "fresh crimes" rationale for its decision. The Court also announced a rule which was broader than necessary to deny resentencing the defendant. But the decision also to a large extent covered offenders who were ineligible for resentencing in any event. The more significant practical effect of the 2008 case would occur if its underlying rationales were applied to drug law resentencing enactments which do not include the three year eligibility bar.
The Court said that, there are a number of reasons why the 2008 and the 2009 case rules, in the view of this Court, should not be applied to resentencing motions under the 2009 DLRA. A number of these rationales are based on differences between the 2004, 2005 and 2009 statutes. It is a universal principle in the interpretation of statutes that expressio unius est exclusio alterius. That is, to say, the specific mention of one person or thing implies the exclusion of other persons or thing. As otherwise expressed, where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted and excluded. Thus, where a statute creates provisos or exceptions as to certain matters the inclusion of such provisos or exceptions is generally considered to deny the existence of others not mentioned".
The exclusions the Legislature created in the 2009 DLRA distinguish it from the 2004 and 2005 Acts. In the 2004 Act's resentencing provision, applicable to Class A-I felony drug offenders, all offenders were eligible for resentencing, although resentencing ranges varied depending upon an offender's criminal history. The 2005 Act barred offenders currently serving sentences which made them not eligible for "Merit Time" from the law. This broad, general exclusion, however, only dealt with offenders who had concurrent sentences for violent, sexual and similar crimes. The 2009 Act's exclusions are more broadly and specifically drawn. The statute excludes not only offenders serving certain current sentences but a range of offenders with objectionable prior criminal histories including those previously convicted of a violent or non Merit-Time eligible offense. The Legislature understood the 2009 Act's exclusions to be of a different kind and character than had been enacted before.
The plain language of the 2009 DLRA resentencing statute thus does not exclude parole violators. There is no legislative history which suggests that the Legislature intended such a result. The Legislature's itemization of specific exclusions in the Act creates a strong inference that no further exclusions were intended. Moreover the 2009 Act differs in this respect from both the 2004 DLRA and the 2005 DLRA. The natural consequence of the 2009 DLRA's unique sentence lengths and timing requirements is that the statute predictably will include parole violators within its eligibility rules. The 2009 DLRA is a remedial statute which must be liberally construed. An offender who is never released from prison may have engaged in much more egregious, dangerous and blameworthy conduct before and after being convicted of a drug crime than one who is granted parole release and then returned to prison after a violation.
Defendant's circumstances in the instant matter provide another good example of the incongruous results which would arise from applying a statutory resentencing bar under the 2009 DLRA to all offenders in prison for a parole violation. Unlike many defendants applying for resentencing under the 2009 DLRA who have significant felony histories, defendant is a first felony offender. He served in the National Guard for eight years. He has successfully completed numerous prison programs. He has no violent felony history. He has an almost perfect prison disciplinary record (having committed one serious disciplinary infraction). At the time his motion was granted he was enrolled in the Alcohol and Substance Abuse Treatment program where he was receiving favorable reviews. But he has also committed multiple parole violations. "Substantial justice" does not dictate the denial of Defendant's resentencing motion. But neither should a judicially created categorical resentencing eligibility bar. Thus, in view of the foregoing, the Court holds that a defendant who is returned to prison after violating the provisions of his parole is not, by virtue of that fact, barred from resentencing eligibility under the 2009 DLRA. Defendant's motion is granted and the Defendant is offered a new determinate sentence of 3 years in prison followed by 2 years of post-release supervision.
If you are involved in a DWI and Drug Crime, you will need the assistance of a Bronx DWI Attorney and/or Bronx Drug Crime Attorney in order to defend your case. Stephen Bilkis and Associates can provide you with competent Bronx Defense Attorney to represent your day in Court. Call us for free consultation.

January 23, 2013

Husband Accused of Lying Under Oath

The complainant husband was granted an uncontested divorce from defendant-wife on the ground of constructive abandonment. This cause of action, often referred to as sexual abandonment, is perhaps the ground most widely used in proceedings where both sides agree to the divorce. A New York Criminal Lawyer said that as part of pleading his claim of sexual abandonment, the husband had to swear to the fact that he and his wife did not have sexual relations for over a year. The wife is attempting to use that statement to prevent her husband from seeking to establish that a child born during the course of the marriage, but conceived well after the date on which the parties allegedly stopped having sex, is actually his son.

The husband contends that irrespective of what he stated in the divorce pleadings, the child in question is in fact his child. He moves for an order directing that genetic marker testing be done so as to conclusively determine paternity. Upon such determination, he further seeks a declaration of paternity and the amendment of the divorce judgment to reflect that his son is the child of the marriage.

The wife opposes her husband’s motion in all regards. She points out that her husband, in his verified complaint for divorce, alleged that from August 1, 2006, onward she refused to have sexual relations with him. Thus, based on his own sworn statements, the wife contends that the child, who was not born until March 19, 2008, cannot possibly be his. A New York Criminal Lawyer said the wife further submits that if her husband is taking the position that the child is his child, this means that the sworn statements in his verified complaint concerning the lack of sexual relations must be untrue. With this regard, the wife cross moved for and order finding that her husband has committed perjury in the second degree.

The parties were married on July 1, 2006, in New York City. Fifteen months later, the husband commenced an action for divorce based on two of the statutory grounds. One was the constructive abandonment of the husband by the wife for a period of one year proceeding commencement of the action; the other was the cruel and inhuman treatment of the husband by the wife. The husband ultimately relied solely on the first cause of action, constructive abandonment, in seeking the divorce.

With respect to his cause of action for constructive abandonment, the husband alleged in his verified complaint that commencing on or about August 1, 2006, and continuing for a period of more than one (1) year immediately prior to commencement of the action, his wife refused to have sexual relations with him despite his repeated requests to resume such relations. The complaint states that there are no children of the marriage.

The wife neither interposed an answer to the complaint nor in any other way sought to contest the divorce. A New York Sex Crimes Lawyer said that instead she provided her husband with an affidavit in which she admitted service of the summons and complaint based upon the grounds of constructive abandonment. She further stated that she was consenting to the matter being placed immediately on the uncontested divorce calendar. On the same day, the wife signed the affidavit of separation and property settlement agreement.

Following the execution of the wife’s affidavit and the couple’s agreement, the husband promptly placed the case on the uncontested matrimonial calendar for submission. It meant that neither party had to appear in court to give testimony because the application for the divorce judgment was to be decided on the papers alone. On July 29, 2008, a judge signed the judgment dissolving the marriage between the parties by reason of the constructive abandonment of the husband by the wife. The judgment states that there are no known children of the marriage and none are expected.

On March 19, 2008, the wife gave birth to a baby boy. This event not only predated the divorce judgment dissolving the parties' marriage, but was prior to the wife’s having signed her affidavit and the parties having entered their separation and property settlement agreement. According to the husband, he was never aware that his wife was pregnant and he only learned about the child after the parties were already divorced. There is no father listed on the child’s birth certificate.
Had the husband commenced the action for divorce in any place other than New York, he could have ended his marriage to his wife without casting any blame. But because New York remains the one state in the nation that requires an allegation of fault as the basis for obtaining a divorce, he had to set forth a fault ground upon which the divorce could be granted. He relied on an allegation of constructive abandonment — that is the refusal by the wife to have sex — to supply the required fault. Because refusing to have sex is seen as having less negative connotations than cruelty or adultery, and because it is more factually nebulous than physical abandonment, constructive abandonment has become the ground of choice in uncontested divorce proceedings. It would be fair to say, however, that when the ground is utilized there is quite often a wide discrepancy between what is said to obtain the divorce and what really has taken place between the parties in the privacy of the marital bedroom. That discrepancy is at the heart of the matter here.

A New York Drug Crime Lawyer said in moving for an order compelling paternity testing, the husband is asking the court to disregard his prior sworn statements that, if true, would exclude him from being the child’s father. Prior sworn statements are routinely used, under the theories of equitable or collateral estoppel, to prevent a litigant from taking a different position at a later point in the same proceeding or in a subsequent case. In cases involving paternity, fathers are frequently barred from denying paternity because of prior statements made to the contrary.
Less common are cases where a false statement has been used to block a party from seeking to prove paternity. The court takes a far different view. Although perjury of any kind is not to be condoned, the context in which it arises must be taken into consideration. The sad truth is that New York's insistence on fault-based divorce ends up promoting a disregard for the truth by fostering and encouraging the embellishment of a spouse's wrongdoing as to grounds, often with immeasurable effects upon a divorcing household. The divorcing household includes an infant boy who, according to his birth certificate, is essentially fatherless. He is in this position despite having been born during the course of his mother's marriage to her husband and the husband having stepped forward to claim paternity. Under the circumstances, the question of whether the husband embellished the truth or even told outright lies in order to obtain the parties' uncontested divorce strikes as far less important than resolving the issue of the child’s parentage, something that is undoubtedly in his best interests.

An additional factor to be considered, particularly in weighing the equities, is the role the wife herself played in the divorce proceeding. While she is quick to claim that her husband’s perjury to the court is blatant, obvious and must be punished, she fails to address her own complicity and lack of truthfulness in this matter. It appears that at no time during the pendency of the divorce action did she ever inform him or the court that she was pregnant or had given birth. Moreover, she expressly consented to her husband obtaining the divorce based on the allegation that she had refused to have sex with him. Thus, the granting of the divorce was facilitated by the wife’s acquiescing in what the husband alleged. Simply stated, if her husband’s sworn statement that he and his wife did not have sexual relations after August 2006 was a lie, then she joined in that lie and benefitted from it when the divorce was granted. Being in pari delicto (equal fault), she does not come before the court with clean hands, and she is scarcely in the position to seek to have her husband punished as a perjurer or even to have his words used against him.

Although neither side raises it, there is one additional factor that must be considered and given significant weight. It is the presumption of legitimacy. The doctrine, which holds that a child born during a marriage is presumed to be the legitimate child of that union, has long been described as one of the strongest and most pervasive known to the law. Even in this age of unerringly accurate paternity testing, the presumption of legitimacy still holds sway, particularly where it is deemed to be in the child's best interests.

The presumption of legitimacy, the child's best interests and the husband’s request for paternity testing go firmly hand-in-hand. The husband is already presumed to be the child’s father by virtue of having been married to the child’s mother when the child was born. The child’s best interest lie in having his parentage confirmed, his father's name listed on his birth certificate, and his rights and status attendant to the father-son relationship fully established. And a positive paternity test provides the means by which any doubt as to whether the husband is the child’s father can be definitively erased.

The husband’s reasons for seeking to prove paternity to legitimatize the child’s birth, establish his parentage and provide him with the benefits of a father-son relationship are compelling. The wife’s reasons for objecting to paternity testing, on the other hand, are not compelling. She has not presented any evidence tending to exclude her husband as the child's father or otherwise disprove legitimacy. Her sole basis for excluding him from being considered as the potential father are the statements he made in the uncontested divorce action — allegations that he was required to make so that the parties could obtain the divorce they both sought. Under the circumstances, equity and the child's best interests require that the husband be granted the relief he requests and that paternity testing go forward to conclusively determine if the boy is indeed his son.

The wife cross-moves for an order finding that her husband has violated the Penal Law, which makes it a criminal act to make a false statement under oath that is material to the proceeding involved. This offense, perjury in the second degree, is a class E felony punishable by up to four years in prison.

The application is without merit. To begin with, the court, which presides over civil matters, is not the proper forum for determining if there has been a violation of the penal code. Perjury is a criminal offense and the examination of witnesses to ascertain whether a basis exists for prosecution is the province of the District Attorney's Office and the Grand Jury, not a civil trial court. Where the record suggests that perjury has been committed, the matter may, in the sound exercise of the court's discretion, be referred to the District Attorney's Office for investigation.

Suffice it to say that if the District Attorney was intent on prosecuting all the people who, within the context of uncontested divorce proceedings, falsely claim not to have had sexual relations with their spouses, there would be little time left for pursuing other crimes. As with a revelation that a husband or wife has committed the criminal act of adultery by having had sex outside the marriage, there are instances of wrongdoing that do not demand the attention of the People of the State of New York in order to keep our society safe and secure. This is one of them.
The husband’s motion for paternity is granted and the wife’s cross-motion that her husband violated the Penal Law is denied in all respects.

Children are always becomes a trophy in a divorce action. The couple who once promised to be together forever conspires to be granted the right to be separated. If you want to win your legal battle, consult the Bronx County Sex Crime Lawyer or the Bronx County Criminal Attorney from Stephen Bilkis and Associates.

January 23, 2013

Child Put in Foster Care After Severe Abuse

Appellants are parents of three children and their parental custody was removed by the court, thus, the appeal was filed before the court for resolution.

In 1997, the father raped her 8-year old daughter during the time that his wife and two sons were asleep at the living room of their apartment. A New York Sex Crimes Lawyer said the child victim went to her mother holding herself tightly and bleeding from her vagina. The mother let her daughter take a shower, placed a sanitary pad to her daughter’s bleeding vagina and made her sleep in bed. The mother did not seek the medical assistance for her daughter as suggested by her husband. After a while, their daughter, being a rape victim, started complaining about stomach cramps and she continue to bleed and vomited.

Upon seeking medical treatment, the parents told a different story about what happened to their daughter and concealed the real story of what happened to their child. A New York Sex Crimes Lawyer said their daughter continued to bleed profusely. The mother even knew of a prior sodomy of her husband toward her daughter and also her husband’s mother accused him of a sex crime of his younger sister. Her daughter underwent operation and was confined in the hospital for ten days.
The father confessed to the commission of rape and was arrested by the police. Their three other children was brought to a foster home. The father pleaded guilty to the sex crime and was sentenced by the court to 15-year imprisonment while the mother pleaded guilty for the crime of reckless endangerment due to her failure to seek immediate medical help of her daughter and by making false statements about the cause of the injuries suffered by the same and was sentenced to a maximum of three years imprisonment.

Family proceedings then commenced against the parents for abuse and for termination of parental rights and the family court found that there were abuses to the children. A Nassau County Sex Crimes Lawyer said the court rendered an order placing the appellant’s children under the custody of a child care institution and subsequently terminated the parental rights of the parents due to permanent neglect of their children.

A new statute was enacted in 1999 where the law set exceptions to the requirement of foster care in taking necessary steps and reasonable efforts to reunite the foster children to their parents, namely, due to “severe abuses” or “aggravated circumstances.” The court clearly found that the parents-appellants have severely abused their daughter being rape victim of his father and for failure of her mother to seek medical assistance in her favor. The court further noted that the other children were also abused. As a consequence, requirement of diligent efforts at reunification is dispensed with and the court terminated the parental rights of the appellants toward their children.

The appellate court affirmed the decision of the family court on the grounds that the passing of the new law, although having retroactive effect, did not affect the vested rights of the parents; the requirement of diligent efforts to be made by foster agencies may be dispensed with and the existence of authority of the family court to make derivative finding of severe abuse. A Queens Sex Crimes Lawyer said due to the offenses and abuses committed by the parents toward their children, the best interests of the children must be held paramount and overcome the right of parental authority of parents over their children. Granting the reunification of the children with the appellants would rather entail grave danger to the former that must be prevented by the court. Prior cases would show that the “courts have consistently sustained derivative findings where a respondent's abuse of the subject child is so closely connected with the care of another child as to indicate that the second child is equally at risk.” Thus, the court’s judgment and order was duly affirmed.

Children are the most susceptible victims of various sex crimes that may be committed even by their parents and love ones. To ensure that the best interests of the children are safeguarded and their fundament rights are protected, appoint rape lawyers at Stephen Bilkis and Associates to handle such delicate situations. We can assure you that our criminal attorneys have the capacity to protect the minors from further harm by availing all the legal remedies due them.

January 23, 2013

Defendant Claims Insufficiency of Evidence in Heroin Possession Case

Defendant was charged with a drug crime, particularly, for possession of heroin and filed an appeal before the court for his conviction. Appellant averred that there was insufficiency of evidence, admissibility of the testimony pertaining to other drugs than those of which he was indicted and trial judge’s charge to the jury.

A New York Criminal Lawyer said the facts of the case were, the postal inspectors found a package from Thailand containing 13 grams of heroin addressed to the resident of the accused. The postal authorities managed an organized delivery of the package to the defendant’s residence. Upon receipt of the package, the officials waited for about twenty to thirty minutes before they entered the apartment of the appellant equipped with a valid search warrant. They saw the drug felon inside his bedroom with 6.5 grams of heroin on top of a table near him. The police detectives made further search within the premises and found thirty packets of heroin, also known as “dime bags,” and butts of marijuana cigarettes inside a drawer of a dresser at another bedroom at the opposite side of the defendant’s room.

The theory of the government was that the accused intended to distribute the heroin upon discovery of the “dime bags” in his apartment. It was a common practice that heroin found in such kind of packages are fitting for the drug crime of street distribution, which is an indication that the appellant was a drug dealer of heroin and the purpose of the delivery of the heroin package was for its distribution. A New York Drug Crime Lawyer said the accused had a different theory, which he presented before the jury. He contended that the “dime bags” did not contain any heroin from the package and that the entire 13-gram heroin he received were those that was found on top of the table in front of him that was found by the police officers. He alleged that when he heard the law enforcers coming inside his room, he had thrown some of the heroin into a corner of a closet.

One of the defendant’s assertions was that there was insufficiency of evidence for the jury failed to consider his theory without reason, thus, arguing that this would result to the evidence being not sufficient to support his conviction of the drug crime. Applying the standard adjudged by the court in one case, to wit “We must uphold a guilty verdict if there is any theory of the evidence from which the jury might have excluded every hypothesis except guilt beyond a reasonable doubt." The court found the argument of the accused unjustifiable and concluded that, upon review of the evidence, the jury met the standard of having considered a reasonable hypothesis to support its decision. He further alleged that the “dime bags” and butts of marijuana are evidence for other crimes or charges and, therefore, cannot be admissible as evidence to the present case. A Nassau County Drug Possession Lawyer said the court also disagreed to the appellant’s contention that the other drugs found during the search should not be admitted as evidence to show his intent of distributing heroin considering that the judge clearly instructed to the omission of any evidence pertaining to the found marijuana.

The court ruled that possession of pure heroin would strongly support an inference of intent to distribute as oppose to just mere possession of such heroin. Given the evidence presented before the trial, it was enough to ascertain that the high quality heroin possessed by the defendant was expensive if distributed in the streets, which constituted a drug crime. Thus, a Queens Drug Possession Lawyer said the court found that the judge did not give the jurors any confusing or erroneous impression to instruct an inference that the appellant had intentions to distribute the heroin.

Consequently, the court found without merit the averments of the appellant and affirmed the conviction of the latter.

A person indicted of heroin possession or other drug crimes requires the assistance of an attorney because it entail serious and difficult question of facts and laws to establish the innocence or guilt of the accused. Stephen Bilkis and Associates have criminal lawyers who are well capacitated to which you can seek legal advice and help in handling a drug case.

January 22, 2013

Defendant Charged with Grand Larceny and Petit Larceny Challenges Sufficiency of Evidence

A man, who was found guilty of grand larceny and petit larceny, filed an appeal and urges the insufficiency of the evidence to support his convictions. But, the court finds the evidence sufficient to support the charges. The court therefore affirmed the conviction and sentence.
Based on records, a New York Criminal Lawyer said the court affirmed the conviction of breaking and entering, but it appears that the state failed to sufficiently prove intent to commit a felony and the record will only support a conviction of breaking and entering with intent to commit a misdemeanor. In addition, a misdemeanor would be reviewable in the circuit court. But, the trial judge had the power to make such settlement as to the lesser included offense.

The man points out the charges of petit larceny. However, the body of the information clearly charged a felony by alleging the felonious taking of personal property of a value in excess of $100.00 and the court announced that it found the man is guilty as charged. The court also found no error in the finding of guilt. But as it appears that the sentence was joined with that of the breaking and entering with intent to commit a felony. A New York Criminal Lawyer said the court likewise vacate the sentence and return the matter to the trial court for an appropriate sentence in accordance with the law of the state as made and provided for petit larceny. As a result, the matter is returned to the trial court for further proceedings.

In another case, a man who was also convicted of the crime of grand larceny filed an appeal. The said man contended that the state's evidence was legally insufficient to sustain their decision, that the quantum of proof adduced by the state fails to establish the guilt of the man to the exclusion of and beyond a reasonable doubt and the evidence presented was legally insufficient to establish the value of the two doors is more than $50.00 at the time they were alleged to have been stolen.

As to the man's contentions numbered one and two, the court finds in the record that there is sufficient evidence to sustain the decision of the jury, but, under the system, the court don’t have the authority to substitute the views and conclusions for those of the jury.
A New York Drug Possession Lawyer said that afterwards, the man was placed at a great disadvantage and embarrassment in finding or pointing out the individual from whom he purchased the two doors alleged to have been stolen. The value of the two doors, as alleged in the information, is fixed at the sum of more than fifty dollars.

Based on records, it is fundamental that the burden of proof, as a matter of law, rested on the state to establish the value of the two doors, to the exclusion of and beyond a reasonable doubt. It was the man's view that similar doors were worth about fifty dollars. The state's evidence on the point of value is to the effect that the two doors were worth customarily more than fifty dollars. It is also the court’s conclusion that the evidence presented by the state failed to establish the value of the two doors alleged to have been stolen at the amount of sum of fifty dollars.

After a review of the evidence, to reduce the degree or offense of which the man was found guilty to some lesser degree or offense as reflected and fully sustained by the state's evidence. A New York Sex Crimes Lawyer said it is the court’s view and conclusion that the evidence presented sustains the offense of petit larceny and the man is adjudicated guilty of petit larceny.

Consequently, the decision appealed from is reversed with directions to the trial court to enter a decision against the man for the offense of petit larceny.

When a family member happens to suffer from a criminal case and you want to help him with his proceedings, you can come and ask legal assistance from the NY Criminal Attorney. But if you prefer to have the New York City Petit Larceny Lawyer or NYC Grand Larceny Lawyers for the initial assessment of your lawsuit, you can reach them easily at Stephen Bilkis and Associates office.

January 21, 2013

Defendant Contends Constructive Possession Could Not be Established in Drug Case

An undercover officer observed the accused hand a third party several glassines of heroin in exchange for money. When the officer solicited two glassines, the accused insisted that the alleged buyer first snort some heroin and, upon the officer refusing, the accused walked away without consummating that sale. When the backup team approached the accused, he ran, discarding 20 glassines of heroin during his flight. A New York Criminal Lawyer said this gave rise to charging the accused with criminal possession of a controlled substance in the third degree. When the accused was apprehended, he had an additional three glassines of heroin on his person and two $20 bills in his pocket. This gave rise to charging the accused with criminal sale of a controlled substance in the third degree. Eight glassines of heroin were recovered from the accused man’s underwear at the precinct. The accused testified that he was an addict who snorted several bags of heroin daily, that he carried the drugs only for his own use, that he had purchased, rather than sold, the heroin, and that he had resisted the advances of a stranger who turned out to be the undercover officer. The evidence sufficiently proves the charges. However, procedural concerns require a reversal of the criminal possession conviction.

A New York Criminal Lawyer said after summations and submissions of the final charges to the jury, the counsel requested submission of criminal possession of a controlled substance in the seventh degree as a lesser included drug offense of the third-degree possessory offense. The court refused, not on any statutory basis, but because the timing of the request contravened the court's policy. The record supports the defense counsel's representation that, in fact, he had previously indicated to the court's Law Secretary that the request might be made, but that counsel would have to hear the accused man’s testimony first. The complainant concedes that if the request had been timely made, the accused would have been entitled to the charge. Although it is manifestly preferable that both counsel know all the charges to be submitted to the jury before summations, the statute appears to authorize such request to be made by counsel at any time prior to the submission of the case to the jury, and the Court of Appeals has characterized this as a general rule, which also reflects the practice in the Second Department. In the present case, there is no indication that the timing of the request manifested an abusive practice, or that granting it would have prejudiced the complainant. Under the circumstances of the case, the charge should have been given to the jury. In reversing and remanding this charge for trial, the remaining charge of which the accused was convicted remains unaffected, insofar as it depended on a different item of evidence.

In one of the heroin related cases, as a result of his alleged sale of heroin to a confidential informant in two controlled buys and his heroin possession at the time of his arrest for those sales while on his way to a third such transaction, the accused was charged by indictment with, among other things, five counts of criminal sale of a controlled substance in the third degree. Following a hearing, a New York Drug Possession Lawyer said the County Court denied the accused man’s pretrial motion to suppress all evidence resulting from his warrantless arrest, finding that the police had probable cause to arrest him. The accused was then convicted as charged following a jury trial. The County Court sentenced him as a second felony offender to five concurrent prison terms of 11 to 22 years and he now appeals.

Initially, County Court properly determined that probable cause existed for the accused man’s arrest. At the suppression hearing, the accused failed to preserve his present contention that the reliability of the confidential informant was not sufficiently established by the prosecution. In any event, the confidential informant knew the accused from past transactions, identified him from a photo array and gave police the heroin obtained in two controlled buys. The informant's description of the illegal sales for which the accused was arrested was corroborated by the recorded conversations between the informant and the accused, and the observations of the officers monitoring the controlled buys. This evidence amply established the informant's reliability.

A New York Sex Crimes Lawyer said the court rejects the accused man’s contention that the evidence was not legally sufficient to demonstrate that he possessed a bundle of heroin which was found in the police vehicle after his arrest. Contrary to the accused man’s argument that constructive possession could not be established by his mere presence in the rear of the vehicle where the heroin was found, the prosecution presented circumstantial evidence of his actual heroin possession. One of the arresting officers, who also drove the police car, testified that he had searched the rear seat of the police car shortly before arresting the accused, he had found no contraband at that time and he then found a bundle of heroin under the rear seat immediately after the accused exited the car. In resolving the issues of whether the officer actually searched the police car before arresting the accused and how the heroin escaped detection when the arresting officers patted him down for weapons, the jury was free to consider that a third controlled buy had been arranged and the accused was on his way to the informant's apartment at the time of his arrest. Accordingly, the verdict was not against the weight of the evidence.
Everybody hopes that the world can be freed from drug users but it’s the kind of hope far from being met. To help you win your drug-related legal actions, Stephen Bilkis and Associates can provide you with NYC Drug Crime Lawyers or New York City Heroin Possession Attorneys. They also have the best New York Criminal Attorney.

January 21, 2013

Defendant Contends Court Erred in Imposing Consecutive Sentences

An appeal was filed by the defendant who was convicted with the crimes of murder and criminal possession of a weapon. He alleged that the court erred in its decision to impose consecutive sentences for the indictments he committed claiming that the accused acted with a singular intent.

The Supreme Court, holding the recent decisions of the Court of Appeals, the determining factor to review the legality of consecutive sentences is “whether separate acts have been committed with the requisite criminal intent.” Consequently, the Court ruled that there was no overlap of the statutory elements of the crimes committed by the appellant, thus, affirming the lawful imposition of consecutive sentences.

A New York Criminal Lawyer said there were two resident gangs at Manhattan who had several altercations among its gang members. One group was composed of the defendant, his sibling and a friend while the other group was a street gang, whose two members were the victims in a shooting incident that caused filing of the felony case against the appellant. Several hours prior to the shooting confrontation, the two groups had encounters and thereafter physical altercations commenced among its gang members. One of the witnesses testified that she saw a gun being carried by the accused at that time of the altercation. After the lapse of a few hours, the defendant moved toward the victim, who was accompanied by other gang members. The group of the victim walked away from the offender to avoid any untoward incident. However, the defendant then took his gun from his shorts and chased down the victim and shot the two victims who died of gunshot wounds.

Thereafter, witnesses identified the felon as the one responsible for the killing of the victims, he was arrested by the police and then the jury trial commenced. A New York Criminal Lawyer said the defendant was found guilty of the crimes of murder and criminal possession of a weapon. The court sentenced him to consecutive terms of 25 years to life and 15 years for the two offenses having a total term of 40 years to life.

Upon appeal of the case made by the defendant, he claimed that the court erred in the imposition of his consecutive sentences based on the premise that there was no charge of illegal possession of weapon that was not connected with the crime of murder made by the prosecution.

A New York Drug Possession Lawyer said the Court based its decision on the mandatory provisions of a statute stating that “for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other.” The prosecution was apt in maintaining that the primary element of murder, as defined by statute, was the resulting death of the two individuals without considerations as to the mode of killings, whether it be by shooting, stabbing or any other means employed with the use of a weapon; while the primordial consideration to be indicted of the gun crime was the actual possession of a loaded operable firearm without regard as to how it shall be used by the individual carrying the weapon. The killing and possession of firearm are considered separate and distinct acts that would constitute two separate felonies. The mere possession of a weapon is not considered necessary in the commission of murder.
Therefore, the judgment and order made by the Court convicting the defendant of the crimes of first degree murder and second degree offense for weapon possession and sentencing him to consecutive terms of 25 years and 15 years, correspondingly, was duly affirmed by the Appellate Court.

The criminal lawyers of Stephen Bilkis and Associates have already handled hundreds cases for various criminal offenses filed before the court. If you are facing any legal disputes or criminal charges involving drug possession, theft or sex crimes, do not hesitate to approach any of our possession of a weapon attorneys to orient you about the legal steps and repercussions of the suits or actions commenced in court.

January 21, 2013

Court Discusses Dual Sovereignties Doctrine

In April, 1973, as a result of a joint major Federal-State narcotics investigation, an indictment was filed against defendants #1, 2 &3, along with 10 other large-scale heroin merchants, for conspiracy to violate Federal drug laws. To support the conspiracy count, covering a period from May, 1971 until the filing of the indictment, 10 particular incidents, including meetings and drug deliveries, were specified as overt acts. A number of substantive drug crimes of heroin possession were also charged.

A New York Criminal Lawyer said that, the instant appeals arise out of a separate concurrent State prosecution in which the three defendants were charged with sale and heroin possession of dangerous drugs. The indictment states that on each of January 8, 12, and 22, 1973, defendants #1,2 &3 possessed and sold over 16 ounces of heroin. These sales had neither been specified as overt acts of the Federal conspiracy nor had they been the subject of the substantive counts in that indictment.

The Federal charges were disposed of first. Defendants 1 & 3 pleaded guilty, among other counts, to conspiracy. Defendant #2,, on the other hand, went to trial and was found guilty on all counts charged. The evidence at that trial although not mentioned in the indictment included testimony concerning the three January drug sales that are the subject of the State prosecution. All three defendants received substantial Federal sentences.

An NYC Criminal Lawyer said that, relying on the double jeopardy provisions of CPL 40.20, Defendants $1, 2 &3 then moved to dismiss the State indictments. Following denial of their motions, each pleaded guilty in State court to selling a dangerous drug in the second degree (Penal Law, former § 220.40). The instant appeals are from the orders of the Appellate Division affirming the convictions.

The issue in this case is whether prosecution of a substantive offense that could have been alleged and proved in support of a prior prosecution for conspiracy violates the CPL 40.20 (subd. 2) prohibition against separate prosecution of offenses arising out of the same "criminal transaction".

The Court said that, under CPL 40.20, not only is the "dual sovereignties" doctrine ignored, but double jeopardy protection is extended, generally, to offenses arising out of a common event. Unless, one of the enumerated exceptions is made out, a person may not be separately prosecuted for two offenses based upon the same act or criminal transaction (CPL 40.20, subd. 2). Restated, absent the statutory exceptions, no matter the numb of statutory offenses technically violated, or the number of jurisdictions involved, an accused is not to suffer repeated prosecution for the same general conduct.

Hence, the initial inquiry is whether a later prosecution of a defendant and a prior prosecution are based upon "the same act or criminal transaction". CPL 40.10 (subd. 2) defines "criminal transaction" as "conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture."

A determination that only one criminal transaction is at issue, however, does not automatically bar a second prosecution. Six exceptions qualify the general proscription. No contention is made that any but the first is relevant to these appeals. Under the paragraph (a) exception, separate prosecutions are permissible where "the offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other."

These CPL provisions were recently considered in. There, under similar circumstances, petitioners successfully raised their prior Federal drug conspiracy prosecution to prohibit a later State prosecution for drug possession. The court in Abraham first rejected the argument that the two offenses, conspiracy and possession, did not arise out of a single "criminal transaction". Tracking the statutory definition of "criminal transaction", the court reasoned that the conduct constituting the possessory crime and the conspiracy was "so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture".
The People in Abraham then sought to invoke the first exception to the statutory bar, namely, that the elements of the two offenses are "substantially different" and the acts constituting each are "in the main clearly distinguishable. The court rejected that argument as well. It looked both to the Federal indictment, which set forth 18 overt acts alleged to have been committed in furtherance of the conspiracy, including the possession at issue in the State prosecution, and to the evidence adduced at the conspiracy trial. The "same possession of the same drugs", the court reasoned, "was among the acts charged and proved and for which a conviction was had".
At the heart of the four instant appeals, therefore, is whether the Abraham case or its rationale is distinguishable.

With respect to defendants #1, 2 & 3, the People rely on the absence from the Federal indictment of the sales for which the State is prosecuting defendants. Whether the sales and the conspiracy arise out of a single "criminal transaction", it is urged, depends upon the acts alleged in furtherance of the Federal conspiracy charge.

The Court held that, appellants' prosecution is barred by New York's statute. The statute was applied to bar a State prosecution for possession of dangerous drugs, the identical possession having been alleged and proved as an overt act in a prior Federal conspiracy prosecution. So, too, where the substantive drug crime was not, but could have been, alleged and proved in the prior Federal conspiracy prosecution, subsequent State prosecution offends the statutory mandate. The Abraham rationale is ignored by distinctions dependent upon which overt acts, if any, are specified in the Federal conspiracy indictment or whether a plea of guilty, as opposed to a trial, disposed of the Federal conspiracy charge. Nor do such distinctions comport with logic or the present legislative notion of fair play.

Consequently, in each of the four cases there should be a reversal, the indictments in the three criminal actions should be dismissed, and prosecution of the remaining counts in the indictment to which the proceeding under CPLR article 78 is addressed should be prohibited.

Accordingly, with respect to defendants #1, 2 & 3, the orders of the Appellate Division should be reversed and the indictments dismissed. With respect to Lisznyia, the judgment, insofar as appealed from, should also be reversed, without costs, and judgment granted in favor of petitioner prohibiting prosecution of the remaining counts of the indictment.

As a general rule, a person may not be separately prosecuted for two offenses based upon the same act or criminal transaction. If you are facing two charges or convictions for the same act or criminal transaction by virtue of sale or heroin possession, sex crimes or theft, you need to seek the representation of a Bronx Drug Crime Attorney. At Stephen Bilkis and Associates, our Bronx Criminal Attorney can help you in order to protect your legal rights. Call us, for free legal advice. We will be glad to help you.

January 20, 2013

Mental Health Facility Refuses to Admit Mentally Ill Defendant After Acquitted from Crime

The director of mental health division refused to admit the petitioner who was acquitted from her criminal charges for petit larceny by reason of insanity. The district court rendered a commitment order of the insane person at a mental health facility of the Florida state. However, the director refused to admit the petitioner raising the issue of danger that would be cause by the accused towards individuals she may be in contact with. The judge sought to show cause from the medical director before the court for failure to follow the commitment order it issued.

In response, a motion to dismiss was filed by the director. A New York Criminal Lawyer said he alleged that the criminal cannot be committed in the mental health facility unless she is civilly committed pursuant to the provisions of the law. The court, on the other hand, averred that the acquitted felon of petit larceny cannot be discharged since she is manifestly dangerous to the peace and safety of the people that she may be in contact with, which warrants her admission to a mental health facility instead. The refusal of the director to admit the petitioner resulted to the imprisonment of the latter at a detention center that caused danger to herself and others.

The Court found that the provisions of the statute pertaining to non-admittance of the acquitted defendant of petit larceny by reason of insanity were unconstitutional and is considered ineffective and inapplicable against the petitioner. It can be established that the due to the insanity of the accused her discharge or release cannot be warranted since she is a danger to herself and others, thus, admission to a mental health facility was deemed necessary. A New York Criminal Lawyer also said the court also ruled that the director of the mental health services admit the defendant for hospitalization and treatment without the occurrence of civil commitment proceedings.
The court based its ruling upon a case, specifically stating that “When a person tried for an offense shall be acquitted by the jury for the cause of insanity, the jury, in giving their verdict of not guilty, shall state that it was given for such cause. If the discharge or going at large of such insane person shall be considered by the court manifestly dangerous to the peace and safety of the people, the court shall order him to be committed to jail or otherwise to be cared for as an insane person and such person shall be held in custody until released by order of the committing court, or may give him into the care of his friends, on their giving satisfactory security for the proper care and protection of such person; otherwise he shall be discharged.”
Thus, the finding of the defendant being manifestly dangerous to herself and the public, which resulted to her acquittal by reason of insanity justified the order of the court to the defendant’s commitment in a mental health facility since this would be for the best interest of both the accused and to pose peach and safety to the public in general.

However, some of the judges of the Supreme Court of Florida dissented to the majority decision of the court. They alleged that there was no case or controversy ripe for decision as to the issue of admission of the defendant in a mental health institution since the acquitted felon was charged with petite larceny and her insanity was not put in issue in the case. A New York Drug Possession Lawyer said it was noted by the dissenting justices that the parties involved in the resolution of the appeal was the court who rendered the commitment order of the accused and the director of the state’s mental health division as to the subject of commitment or non-commitment of the accused at the said facility, hence, the petitioner is of no concern with the issue presented in the appealed case.

Valid defenses are readily available to felons charged with a criminal offense that could justify the acquittal or exemption from any liability. You will just need the help of a criminal attorney to provide you with legal options that would best apply to your case, whether you have been charged with a drug crime, sex crimes or theft. Stephen Bilkis and Associates have grand larceny lawyers who could give you legal advices and are ready for your employ.

January 20, 2013

Court Says Probable Cause May Be Supplied in Part by Hearsay Information

This is an appeal by the defendant from a judgment of the County Court, Nassau County, rendered October 21, 1993, convicting him of murder in the second degree (two counts), robbery in the first degree (two counts), criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of the branch of the defendant's omnibus motion which was to suppress statements made by the defendant to law enforcement officials.

The issue in this case is whether the defendant is entitled to the suppression of his statements made to the law enforcement officials.

A New York Criminal Lawyer said in this gun crime case, the Court said that, the People established that the police had probable cause to arrest the defendant without a warrant. Probable cause may be supplied, in whole or in part, through hearsay information. Under the Aguilar- Spinelli rule, when probable cause is predicated in whole or in part upon the hearsay statement of an informant, it must be demonstrated that (1) the informant disclosed a sufficient basis for his or her knowledge, and (2) the informant was reliable. Further, the basis-of-knowledge and veracity requirements of Aguilar- Spinelli are analytically independent and each must be satisfied separately. "Information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest.

In the instant case, the disclosed informant was an individual who admitted to using a credit card stolen by the defendant from one of the defendant's victims. Since his statement not only subjected him to a potential penalty for providing the police with fabricated information but also admitted his own criminal conduct. The Court finds that the prosecution established this witness's veracity.

The Court held that the "basis-of-knowledge" prong of the test may be satisfied upon a showing that the information furnished is so detailed as to make it clear that it must have been based upon personal knowledge. In order to satisfy the "basis-of-knowledge" prong, it is not necessary that the informant have personally viewed the criminal activity. This informant, who was with the defendant prior to and immediately after the gun crime, explained in detail how the defendant planned the crime, took a gun from where it had been secreted, left to commit the robbery, returned with the fruits of the robbery, and talked about the details of the robbery. An NY Criminal Lawyer said the information provided by the informant was consistent with the details already learned by the police during their investigation. " 'What is required is information of such quality, considering its source and the circumstances in which it came into possession of the informant, that a reasonable observer would be warranted in determining that the basis of the informant's knowledge was such that it led logically to the conclusion that a crime had been committed' " by the defendant.

Based on the evidence before the hearing court, we are convinced that the People established the informant's veracity and basis of knowledge. Viewing the evidence adduced at trial in the light most favorable to the prosecution, the Court finds that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence. Thus, the sentence imposed was not excessive.

Accordingly, judgment of the County Court, Nassau County, convicting defendant of murder in the second degree (two counts), robbery in the first degree (two counts), criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence is hereby affirmed.

The rule is that, probable cause may be supplied, in whole or in part, through hearsay information. If you have been charged or convicted of a gun crime or criminal possession of a weapon, sex crimes or drug charges, seek the advice of a Nassau Possession of a Weapon Attorney in order explain to you the legal consequences of your case. At Stephen Bilkis and Associates, our Nassau Criminal Attorney and Nassau Arrest Attorneys can represent your day in Court.

January 12, 2013

Court Discusses "Suitable Residence" Requirement for Defendant's Parole

This case is about the Petition for a Writ of Habeas Corpus filed by the Petitioner who challenged his continued incarceration in the custody of the New York State Department of Correctional Services (DOCS). He argued that the delinquent time assessment imposed on November 5, 2008 following his final parole revocation hearing already expired on February 17, 2010.

It all started on September 10, 1997 when petitioner was convicted of the crime of Arson in the second degree and was given an indeterminate sentence of 7 to 14 years. In 2006, he was released from DOCS custody to parole supervision. His parole was subsequently revoked and was sent to a drug rehab center. In January 2007, Petitioner was released back to community based parole supervision, but thereafter, violated again the conditions of his release. He was returned to DOCS custody as a parole violator.

A New York Criminal Lawyer said on September 10, 1997 petitioner was sentenced in Oneida County Court, to an indeterminate sentence of 7 to 14 years, upon his conviction of the crime of Arson 2°. Petitioner was first released form DOCS custody to parole supervision in September of 2006. His parole, however, was subsequently revoked but restored at the Willard Drug Treatment Campus. Petitioner was released from Willard back to community-based parole supervision in January of 2007 but he again violated the conditions of release and was returned to DOCS custody as a parole violator.

On June 11, 2008, Petitioner was again released to parole supervision. On October 20, 2008, Petitioner was served with a Notice of Violation/Violation of Release Report charging him with possession of a quantity of controlled substance, specifically, marijuana, which was found in his bedroom..." A Nassau County Criminal Lawyer the Notice of Violation/Violation of Release Report was served on petitioner at the Rensselaer County Jail where he was apparently held in connection with new criminal charges.

On November 5, 2008, a final parole revocation hearing was conducted, at which time petitioner pled guilty to Parole Violation Charge of drug possession and the remaining charges were withdrawn with prejudice. Petitioner's parole was revoked and a 16-month delinquent time assessment, anticipated to expire on February 17, 2010, was imposed. In imposing such time assessment the presiding Administrative Law Judge noted that felony rape charges were pending against petitioner.

On May 27, 2009, Petitioner was convicted in Justice Court, Town of Nassau, of the crimes of Sexual Misconduct (Penal Law §130.20(1)) and Endangering the Welfare of a Child, both misdemeanors. By reason of his Sexual Misconduct conviction, however, petitioner is a "sex offender" under the provisions of Correction Law §i68-a(i) and (2)(a)(i). It appears that petitioner was received back into DOCS custody on June 25, 2009. He was approved for re-release to parole supervision upon the expiration of his delinquent time assessment on February 17, 2010, but conditions were imposed as follows:

"[Petitioner] WILL PROPOSE A RESIDENCE TO BE APPROVED BY THE DIVISION OF PAROLE AND WILL ASSIST THE DIVISION IN ANY EFFORTS IT MAY MAKE ON [petitioner's] BEHALF TO DEVELOP AN APPROVED RESIDENCE.

[Petitioner] WILL RESIDE ONLY IN THE RESIDENCE APPROVED BY THE DIVISION OF PAROLE."

Petitioner further argued that his continued custody was due to the fact that the DOCS officials have confused him with another inmate named "James Brown" (96-A-4838), who was sentenced in Suffolk County Court on June 13, 1996 to a controlling, aggregate indeterminate sentence of 20 to 40 years upon his convictions of the crimes of Rape 1°, Sodomy 1° and Burglary 2°. In support of that suggestion petitioner asserts that upon inquiry into his own incarceration, pursuant to a F.O.I.L. request, he received a copy of the Sentence & Commitment Order of the other "James Brown."

It is a well-settled doctrine that "The imposition of a special [parole] condition is discretionary in nature and ordinarily beyond judicial review as long as it is made in accordance with law and no positive statutory requirement is violated... If the condition is rationally related to the inmate's past conduct and future chances of recidivism, Supreme Court has no authority to substitute its own discretion for that of the individuals in charge of designing the terms of petitioner's parole release."

In this case, The Court held that the imposition of the "suitable residence" condition in the case at bar was rational in view of petitioner's arson conviction with multiple parole violations, together with his recent conviction of a misdemeanor sex crime committed while under parole supervision from the arson conviction. The Court, moreover, finds nothing in the petition which can be construed as a challenge to the rationality of the application of the "suitable residence" condition to any particular residence proposed by petitioner.

Finally, the Court ruled that there is nothing in the record before it to support any inference that parole officials erroneously considered the disturbing criminal record of the other "James Brown" when the "suitable residence" condition was imposed on petitioner. Nor is there anything in the record to suggest that information pertaining to the other "James Brown" was erroneously transmitted by parole officials to any person/entity considering an offer of housing to petitioner.

Our New York Criminal Lawyer from Stephen Bilkis and Associates has experience with cases similar to that discussed above. It can help you and your loved with during a difficult time, whether they have been charged with sex crimes, theft or drug possession. It has offices within New York Metropolitan area, including Corona, New York.

January 11, 2013

The Issue in this Case is Whether Defendant’s Guilt was Proven Beyond a Reasonable Doubt.

In this criminal case, defendant appealed from a judgment of the County Court, Nassau County (Jonas, J.), rendered November 18, 1991, convicting him of attempted murder in the first degree, criminal possession of a weapon in the second degree (two counts), reckless endangerment in the second degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the fourth degree, upon a jury verdict, and imposing sentence.

A New York Criminal Lawyer said the issue in this case is whether defendant’s guilt was proven beyond reasonable doubt.

The Court held that, the evidence presented at trial was legally sufficient to establish beyond a reasonable doubt that the defendant had the requisite intent for criminal possession of a controlled substance in the third degree. The defendant was in possession of 12.312 grams, or .434 ounces, of cocaine. There was legally sufficient evidence of the element of intent to sell a controlled substance based upon the defendant's possession of this quantity of cocaine.

Furthermore, the defendant was in possession of a large number of small plastic bags, which is consistent with the sale of the cocaine. Viewing the evidence in the light most favorable to the prosecution, the Court finds that it was legally sufficient to establish the defendant's guilt of criminal possession of a controlled substance in the third degree beyond a reasonable doubt. Moreover, upon the exercise of the Court’s factual review power, the Court is satisfied that the verdict of guilt was not against the weight of the evidence.

Furthermore, the Court said that, viewing the evidence adduced at the trial in the light most favorable to the prosecution, the Court finds that it was legally sufficient to establish the defendant's guilt of attempted murder in the first degree beyond a reasonable doubt. The prosecution produced evidence that the defendant had pointed his gun at a police officer and fired it. Moreover, upon the exercise of the Court’s factual review power, the Court is satisfied that the verdict of guilt was not against the weight of the evidence.

An NYC Criminal Lawyer said the defendant's contention that the trial court erred in not charging the jury that attempted aggravated assault upon a police officer is a lesser-included offense of attempted murder in the first degree is meritless. At the time the defendant was tried, aggravated assault upon a police officer required a firearm (see, Penal Law § 120.11). Murder in the first degree did not. A defendant is not entitled to a charge of a lesser-included offense unless, under all possible circumstances, it is impossible to commit the greater crime without concomitantly committing the lesser. At the time the defendant was tried, it was possible to commit the crime of attempted murder in the first degree without also committing attempted aggravated assault upon a police officer, and, therefore, the defendant was not entitled to a lesser-included-offense charge of attempted aggravated assault upon a police officer.

The prosecution adequately established that the circumstances of the custody of the cocaine taken from the defendant provided reasonable assurances of the identity and unchanged condition of the evidence. The defendant's remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit.

Accordingly, the Court ordered that the judgment of the County Court, Nassau County, convicting defendant of attempted murder in the first degree, criminal possession of a weapon in the second degree (two counts), reckless endangerment in the second degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the fourth degree, upon a jury verdict, and imposing sentence is hereby affirmed.

If you have been charged of criminal possession of a weapon, murder, gun crimes, or sex crimes, you need the help of a Nassau Possession of a Weapon Attorney in order to explain to you the legal consequences of your case in criminal law. Without the representation of a Nassau Criminal attorney or Nassau Arrest Attorney you will lose your right to properly defend your case. Call us at Stephen Bilkis and Associates for free consultation.

January 8, 2013

The issue in this case is whether the superior court information was jurisdictionally defective because it charged a crime of a higher degree than any of the crimes charged in the felony complaint

On November 22, 2006, defendant executed in open court a written waiver of his constitutional right to be prosecuted by indictment and consented to be prosecuted instead by a superior court information charging him with first-degree of grand larceny, which requires that the value of the property stolen exceed $ 1 million. More than three months earlier, defendant had been arrested and charged in a felony complaint with second-degree grand larceny, which requires that the value of the property stolen exceed $50,000, and second-degree criminal possession of a forged instrument. The felony complaint charged that defendant was the head of accounts payable at Nina Footwear and had stolen approximately $700,000 from the company by issuing forged checks to himself and a codefendant. Notably, the felony complaint also alleged that defendant had admitted to the police that he had issued the checks in question and forged the signatures. Thereafter, as the minutes of the several proceedings in criminal court prior to November 22 establish, defense counsel and the prosecutor were negotiating a disposition.

A New York Criminal Lawyer said at the outset of the proceedings, defense counsel made clear that defendant had not wanted and did not want to be indicted by a jury. The court noted that a superior court information had been prepared and that the People would proceed to a jury if a disposition was not reached. After the court stated that the felony complaint charged defendant with stealing hundreds of thousands of dollars from Nina Footwear, the prosecutor stated that "since the complaint was drafted, there has been a significant amount discovered on top of that. It is now over 1 million dollars." The court then outlined on the record the disposition to which the parties had agreed: defendant would plead guilty to a superior court information charging him with first-degree grand larceny in exchange for a prison sentence of 2 1/3 to 7 years, pay some $ 100,000 in restitution and consent to the entry of judgment against him in the full amount of the theft, about $1.5 million.
Following discussions between the court and counsel, defendant signed a waiver of indictment form. As required by CPL 195.20, the written waiver of indictment contained a statement by defendant that he was aware that he had the right under the New York State Constitution to be prosecuted by a grand jury indictment, was waiving that right and consenting to be prosecuted by a superior court information, and that the information would be charging the offense specified in the written waiver and have the same force and effect as an indictment filed by the jury. Also as required by CPL 195.20, the written waiver was signed by defendant in open court in the presence of his attorney, and the consent of the District Attorney was endorsed thereon.

A Staten Island Criminal Lawyer said that, in response to questions from the court, defendant said he understood both the waiver form and that there would not be an indictment, "consented to be prosecuted by a piece of paper called a superior court information," and wished to plead guilty to first-degree grand larceny, "the one and only count in the superior court information." Defendant then admitted that, over a two-year period from 2004 to 2006, he had stolen more than $1 million from Nina Footwear. He agreed both to the negotiated prison term of 2 1/3 to 7 years and to forfeiture of more than $100,000. In addition, he signed a confession of judgment for approximately $1.5 million. During the plea allocution, when the court asked whether any other promises had been made, defendant responded, "I just want it to be over with." He then confirmed that he both was pleading guilty voluntarily and in fact was guilty.

A New York Grand Larceny Lawyer said that, the Supreme Court convicted defendant, upon his plea of guilty, of grand larceny in the first degree, and sentencing him to a term of 2 to 7 years.
The issue in this case is whether the superior court information was jurisdictionally defective because it charged a crime of a higher degree than any of the crimes charged in the felony complaint, and thus warrants the reversal of his conviction.

The Court said that, as defendant tacitly concedes, his waiver of the right to indictment does not violate anything in article I, § 6 of the New York State Constitution. In relevant part, that provision expressly states that "a person held for the action of a grand jury" upon a charge of a felony offense, "other than one punishable by death or life imprisonment, with the consent of the district attorney, may waive indictment by a jury and consent to be prosecuted on an information filed by the district attorney; such waiver shall be evidenced by written instrument signed by the defendant in open court in the presence of his or her counsel." Each of these constitutional conditions was satisfied here and defendant makes no claim to the contrary.

With respect to the non-constitutional claims defendant does make, he misreads CPL 195.20 and contends that the superior court information was jurisdictionally defective "because it charged a higher level of offense than any charged in the felony complaint." As noted above, after oral argument of this appeal, the Court of Appeals rejected this contention.

First of all, CPL 195.20 contains no prohibition on the inclusion in a superior court information of a count alleging a higher level offense than that or those charged in a felony complaint. In relevant part, the statute reads as follows: "The offenses named in a superior court information may include any offense for which the defendant was held for action of a jury and any offense or offenses properly joinable therewith pursuant to sections 200.20 and 200.40". Under CPL 200.20, the section applicable here, the level of an offense is irrelevant to the question of whether it is properly joinable with another offense.

Accordingly, the prohibition defendant finds in the second clause of this sentence is precluded by the plain language of the statute. As in People v Menchetti, the word "any" should be given its plain meaning. There, the Court of Appeals emphasized the same word in the first clause of this sentence in concluding that a superior court information could charge a lesser included offense of an offense for which a defendant was held for the action of a jury. Defendant reads CPL 195.20 as if it stated that the offenses named in a superior court information "may include any offense for which the defendant was held for action of a jury and any offense or offenses properly joinable therewith pursuant to sections 200.20 and 200.40, except that no such joinable offense may be a higher level of offense than the offense or offenses for which the defendant was held for action of a jury." That reading of the statute, however, is impermissible.

Giving the second sentence of CPL 195.20 its natural meaning accords with common sense. The usefulness and practicality of the flexibility it affords to both the prosecution and the defense is apparent. This case also illustrates the good sense of CPL 195.20. When defendant was arrested and arraigned on the felony complaint, the full extent of his theft was unknown. Unquestionably, and defendant does not dispute, the first-degree grand larceny offense is properly joinable with both of the crimes alleged in the felony complaint, second-degree grand larceny and second-degree criminal possession of a forged instrument, regardless of whether the first-degree grand larceny charge is based on the same criminal transaction as those lesser offenses. Of course, and as is discussed below, a defendant can secure significant benefits by waiving indictment.

Defendant is correct, however, that People v Zanghi requires reversal of his conviction. Zanghi was held for the action of a jury following his arraignment on a felony complaint charging criminal possession of stolen property in the fourth degree and the misdemeanor of unauthorized use of a motor vehicle in the third degree. He thereafter executed a written waiver of his right to indictment, consented to be prosecuted by a superior court information charging him solely with criminal possession of stolen property in the third degree and pleaded guilty to that crime. The Court of Appeals agreed with Zanghi's claim that the superior court information was jurisdictionally defective.

As is evident, the Court held that the information was jurisdictionally defective because it did not meet what the Court believed to be a requirement of the statute, the requirement that it, "at a minimum, also include at least one offense that was contained in the felony complaint." The Court expressly predicated its holding on the failure of the information to "meet that criterion", not on the ground that it charged an offense higher than any for which Zanghi was held for the action of a grand jury.

As also is evident, this case is indistinguishable from People v Zanghi. Because the superior court information charged only first-degree grand larceny, and that offense is not one for which defendant was held for the action of the jury, under People v Zanghi it is of no moment that first-degree grand larceny is properly joinable with both crimes charged in the felony complaint. The information is jurisdictionally defective nonetheless.

The Court respectfully submits that CPL 195.20 does not require a superior court information to charge at least one of the offenses charged in the felony complaint. In the first place, the sentence states that "the offenses named may include any offense for which the defendant was held for action of a jury and any offense or offenses properly joinable therewith". Giving the words "may" and "any" their ordinary meaning, the statute authorizes the information to include any of two categories of offenses those for which the defendant was held for action of the jury and those properly joinable with the former category without requiring the inclusion of an offense from both categories or only the former category.

The Court did not explain in People v Zanghi why it believed the word "therewith" supported its holding that an offense joinable with an offense for which the defendant was held for action of a jury may be charged in a superior court information only if the latter offense also is charged. If the Court believed, however, that the word refers back to the superior court information, suffice it to say that another reading of the sentence is reasonable. After all, the nearest antecedent to the word "therewith" is not an accusatory instrument but the phrase "any offense for which the defendant was held for action of a jury." In any event, the sentence does not unambiguously require that when a joinable offense is charged in a superior court information, the information also must charge the offense charged in the felony complaint with which the former offense is joinable.

Notably, when a person who has been held for the action of a jury is indicted, nothing in the Criminal Procedure Law requires that the indictment allege at least one of the offenses for which he or she was held for the jury's action. To the contrary, the relevant statute requires only that the indictment "must charge at least one crime". Again, nothing in the constitutional text suggests that a defendant who waives indictment, but not a defendant who is indicted after being charged in a felony complaint, must be charged with at least one of the offenses for which he or she was held for the action of a grand jury.

In sum, the text of CPL 195.20 does not compel the construction adopted in People v Zanghi and unreasonable consequences follow from that construction. Accordingly, the statute should be construed to permit the information to charge an offense joinable with an offense for which the defendant was held for action of a grand jury, regardless of whether the latter offense also is charged. Consequences cannot alter statutes, but may help to fix their meaning. Statutes must be so construed, if possible, that absurdity and mischief may be avoided. Courts normally accord statutes their plain meaning, but will not blindly apply the words of a statute to arrive at an unreasonable or absurd result. Where a statute's language is capable of various constructions, the obvious spirit and intent' of a statute necessarily informs the meaning and import to be accorded that language.

Finally, the Court said that the mandate of CPL 470.05 (1) is relevant here. The Legislature's command is that "an appellate court must determine an appeal without regard to technical errors or defects which do not affect the substantial rights of the parties." Although this statute does not expressly direct courts how to construe provisions of the Criminal Procedure Law, its directive should be considered when a court is attempting to resolve an ambiguity in one of those provisions. As between two possible readings of a provision of the Criminal Procedure Law, surely an appellate court should not adopt the one turning on technicalities that do not affect the substantial rights of the parties. This case presents a conflict between two obligations of intermediate appellate courts, the duty to abide the decisions of the Court of Appeals and the duty to abide the mandates of the Legislature. While I think we should resolve the conflict by abiding the former obligation, I also think the mandate of CPL 470.05 (1) is sufficient to justify my invitation to the Court of Appeals, however presumptuous the invitation may be, to reconsider People v Zanghi.

Accordingly, the Court ordered that Judgment, Supreme Court, New York County, convicting defendant, upon his plea of guilty, of grand larceny in the first degree, and sentencing him to a term of 2 to 7 years, reversed, on the law, the plea vacated, the superior court information dismissed, and the matter remanded to Supreme Court for further proceedings on the felony complaint.

Every person is guaranteed with his constitutional rights. If you have been improperly convicted of the crime of grand larceny, drug possession or sex crimes, you will need the representation of a New York Grand Larceny Attorney. New York Criminal Attorney at Stephen Bilkis and Associates can help you and make sure that we will exhaust all the possible remedies available to your case.

January 8, 2013

Prison Inmates Contend Constitutional Rights Were Violated

Respondent inmates brought this class action in Federal District Court challenging the constitutionality of numerous conditions of confinement and practices in the Metropolitan Correctional Center (MCC), a federally operated short-term custodial facility in New York City designed primarily to house pretrial detainees for federal criminal offense. A New York Criminal Lawyer said the District Court, on various constitutional grounds, enjoined, the practice of housing, primarily for sleeping purposes, two inmates in individual rooms originally intended for single occupancy ("double-bunking"); enforcement of the so-called "publisher-only" rule prohibiting inmates from receiving hard-cover books that are not mailed directly from publishers, book clubs, or bookstores; the prohibition against inmates' receipt of packages of food and personal items from outside the institution; the practice of body-cavity searches of inmates following contact visits with person from outside institution; and the requirement that pretrial detainees remain outside their rooms during routine inspections by MCC officials. The Court of Appeals affirmed these rulings, holding with respect to the "double-bunking" practice that the MCC had failed to make a showing of "compelling necessity" sufficient to justify such practice.

The issue in this case is whether the constitutional rights of the inmates has been violated because of the conditions of confinement and practices imposed by the MCC, a facility designed to house a pre-trial detainees who committed federal criminal offense.

The Court held that, "double-bunking" practice does not deprive pretrial detainees of their liberty without due process of law in contravention of the Fifth Amendment.

A Suffolk County Criminal Lawyer said there is no source in the Constitution for the Court of Appeals' compelling-necessity standard. Neither the presumption of innocence, the Due Process Clause of the Fifth Amendment, nor a pretrial detainee's right to be free from punishment provides any basis for such standard. In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicates only the protection against deprivation of liberty without due process of law, the proper inquiry is whether those conditions or restrictions amount to punishment of the detainee. Absent a showing of an expressed intent to punish, if a particular condition or restriction is reasonably related to a legitimate non-punitive governmental objective, it does not, without more, amount to "punishment," but, conversely, if a condition or restriction is arbitrary or purposeless, a court may permissibly infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. In addition to ensuring the detainees' presence at trial, the effective management of the detention facility once the individual is confined is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such conditions and restrictions are intended as punishment.

Judged by the above analysis and on the record the Court held that, "double-bunking" as practiced at the MCC did not, as a matter of law, amount to punishment and hence did not violate respondents' rights under the Due Process Clause of the Fifth Amendment. While "double-bunking" may have taxed some of the equipment or particular facilities in certain of the common areas in the MCC, this does not mean that the conditions at the MCC failed to meet the standards required by the Constitution, particularly where it appears that nearly all pretrial detainees are released within 60 days.

Nor does the “publisher-only” rule, body-cavity searches, the prohibition against the receipt of packages, or the room-search rule violate any constitutional guarantees. Simply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations. There must be a "mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application, and this principle applies equally to pretrial detainees and convicted prisoners. Maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees. Since problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions, prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.

The Court said that, the "publisher-only" rule does not violate the First Amendment rights of MCC inmates but is a rational response by prison officials to the obvious security problem of preventing the smuggling of contraband in books sent from outside. Moreover, such rule operates in a neutral fashion, without regard to the content of the expression, there are alternative means of obtaining reading material, and the rule's impact on pretrial detainees is limited to a maximum period of approximately 60 days. The restriction against the receipt of packages from outside the facility does not deprive pretrial detainees of their property without due process of law in contravention of the Fifth Amendment, especially in view of the obvious fact that such packages are handy devices for the smuggling of contraband.

Assuming that a pretrial detainee retains a diminished expectation of privacy after commitment to a custodial facility, the room-search rule does not violate the Fourth Amendment but simply facilitates the safe and effective performance of the searches and thus does not render the searches "unreasonable" within the meaning of that Amendment. Similarly, assuming that pretrial detainees retain some Fourth Amendment rights upon commitment to a corrections facility, the body-cavity searches do not violate that Amendment. Balancing the significant and legitimate security interests of the institution against the inmates' privacy interests, such searches can be conducted on less than probable cause and are not unreasonable.

The Court said that, none of the security restrictions and practices described above constitutes "punishment" in violation of the rights of pretrial detainees under the Due Process Clause of the Fifth Amendment. These restrictions and practices were reasonable responses by MCC officials to legitimate security concerns, and, in any event, were of only limited duration so far as the pretrial detainees were concerned.

Thus, in view of the foregoing, the Court ordered that the decision of the Court Appeals be reversed and the case be remanded to the District Court.

No person shall be deprived of his life, liberty and property without due process of law. Even criminals or inmates retain certain constitutional rights, but it does not mean that such rights are not subject to restrictions and limitations. Whether you feel your rights have been violated, or you have been charged with drug possession, theft or sex crimes, contact Stephen Bilkis and Associates for help and a free consultation.

January 7, 2013

Court Hears Case Based on Professional Misconduct

On February 20, 1967, the then City Manager of respondent city of Independence, appointed petitioner to an indefinite term as Chief of Police. In 1972, petitioner and a new City Manager, engaged in a dispute over petitioner's administration of the Police Department's property room. In March of that year, a handgun, which the records of the Department's property room stated had been destroyed, turned up in Kansas City in the possession of a felon. A New York Criminal Lawyer said this discovery prompted the City Manager to initiate an investigation of the management of the property room. Although the probe was initially directed by petitioner, the City Manager soon transferred responsibility for the investigation to the city's Department of Law, instructing the City Counselor to supervise its conduct and to inform him directly of its findings.

Sometime in early April 1972, the City Manager received a written report on the investigation's progress, along with copies of confidential witness statements. A Westchester County Criminal Lawyer said that although the City Auditor found that the Police Department's records were insufficient to permit an adequate accounting of the goods contained in the property room, the City Counselor concluded that there was no evidence of any criminal acts or of any violation of state or municipal law in the administration of the property room.

A Suffolk Criminal Lawyer said that, the City Manager asked petitioner to resign as Chief of Police and to accept another position within the Department, citing dissatisfaction with the manner in which petitioner had managed the Department, particularly his inadequate supervision of the property room. He warned that if petitioner refused to take another position in the Department his employment would be terminated, to which petitioner responded that he did not intend to resign.

Thereafter, the City Manager issued a public statement addressed to the Mayor and the City Council concerning the results of the investigation. After referring to "discrepancies" found in the administration, handling, and security of public property, the release concluded that there appears to be no evidence to substantiate any allegations of a criminal nature and offered assurances that steps have been initiated on an administrative level to correct these discrepancies. Although the City Manager apparently had decided by this time to replace petitioner as Police Chief, he took no formal action to that end and left for a brief vacation without informing the City Council of his decision.

Petitioner, having consulted with counsel, sent the City Manager a letter demanding written notice of the charges against him and a public hearing with a reasonable opportunity to respond to those charges. At approximately the same time, City Councilman asked for a copy of the investigative report on the Police Department property room

A Suffolk Criminal Lawyer said that, after completion of the planned agenda, Councilman read a statement he had prepared on the investigation. Among other allegations, the City Council charged that petitioner had misappropriated Police Department property for his own use, that narcotics and money had "mysteriously disappeared" from his office, that traffic tickets had been manipulated, that high ranking police officials had made "inappropriate" requests affecting the police court, and that "things have occurred causing the unusual release of felons.
After the City Council of respondent city moved that reports of an investigation of the city police department be released to the news media and turned over to the prosecutor for presentation to the grand jury and that the City Manager take appropriate action against the persons involved in the wrongful activities brought out in the investigative reports, the City Manager discharged petitioner from his position as Chief of Police. No reason was given for the dismissal and petitioner received only a written notice stating that the dismissal was made pursuant to a specified provision of the city charter. Subsequently, petitioner brought suit in Federal District Court under 42 U.S.C. § 1983 against the city, the respondent City Manager, and the respondent members of the City Council in their official capacities, alleging that he was discharged without notice of reasons and without a hearing in violation of his constitutional rights to procedural and substantive due process, and seeking declaratory and injunctive relief. The District Court, after a bench trial, entered judgment for respondents. The Court of Appeals ultimately affirmed, holding that although the city had violated petitioner's rights under the Fourteenth Amendment, nevertheless all the respondents, including the city, were entitled to qualified immunity from liability based on the good faith of the city officials involved.
The issue in this case is whether the respondent city, acting in good faith, is immune from liability.

The Court held that, a municipality has no immunity from liability under § 1983 flowing from its constitutional violations and may not assert the good faith of its officers as a defense to such liability.

The Court said that, by its terms, § 1983 "creates a species of tort liability that on its face admits of no immunities." Its language is absolute and unqualified, and no mention is made of any privileges, immunities, or defenses that may be asserted. Rather, the statute imposes liability upon "every person", to encompass municipal corporations who, under color of state law or custom, "subjects, or causes to be subjected, any citizen of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." And this expansive sweep of § 1983's language is confirmed by its legislative history.
Where an immunity was well established at common law and where its rationale was compatible with the purposes of § 1983, the statute has been construed to incorporate that immunity. But there is no tradition of immunity for municipal corporations, and neither history nor policy supports a construction of § 1983 that would justify the qualified immunity accorded respondent city by the Court of Appeals.

The Court held that, the application and rationale underlying both the doctrine whereby a municipality was held immune from tort liability with respect to its "governmental" functions but not for its "proprietary" functions, and the doctrine whereby a municipality was immunized for its "discretionary" or "legislative" activities but not for those which were "ministerial" in nature, demonstrate that neither of these common-law doctrines could have been intended to limit a municipality's liability under § 1983. The principle of sovereign immunity from which a municipality's immunity for "governmental" functions derives cannot serve as the basis for the qualified privilege respondent city claims under § 1983, since sovereign immunity insulates a municipality from unconsented suits altogether, the presence or absence of good faith being irrelevant, and since the municipality's "governmental" immunity is abrogated by the sovereign's enactment of a statute such as § 1983 making it amenable to suit. And the doctrine granting a municipality immunity for "discretionary" functions, which doctrine merely prevented courts from substituting their own judgment on matters within the lawful discretion of the municipality, cannot serve as the foundation for a good-faith immunity under § 1983, since a municipality has no "discretion" to violate the Federal Constitution.

Rejection of a construction of § 1983 that would accord municipalities a qualified immunity for their good-faith constitutional violations is compelled both by the purpose of § 1983 to provide protection to those persons wronged by the abuse of governmental authority and to deter future constitutional violations, and by considerations of public policy. In view of the qualified immunity enjoyed by most government officials, many victims of municipal malfeasance would be left remediless if the city were also allowed to assert a good-faith defense. The concerns that justified decisions conferring qualified immunities on various government officials the injustice, particularly in the absence of bad faith, of subjecting the official to liability, and the danger that the threat of such liability would deter the official's willingness to execute his office effectively are less compelling, if not wholly inapplicable, when the liability of the municipal entity is at issue.
In sum, the Court’s decision holding that municipalities have no immunity from damages liability flowing from their constitutional violations harmonizes well with developments in the common law and our own pronouncements on official immunities under § 1983. Doctrines of tort law have changed significantly over the past century, and our notions of governmental responsibility should properly reflect that evolution. No longer is individual "blameworthiness" the acid test of liability; the principle of equitable loss-spreading has joined fault as a factor in distributing the costs of official misconduct.

The Court believes that today's decision, together with prior precedents in this area, properly allocates these costs among the three principals in the scenario of the § 1983 cause of action: the victim of the constitutional deprivation; the officer whose conduct caused the injury; and the public, as represented by the municipal entity. The innocent individual who is harmed by an abuse of governmental authority is assured that he will be compensated for his injury. The offending official, so long as he conducts himself in good faith, may go about his business secure in the knowledge that a qualified immunity will protect him from personal liability for damages that are more appropriately chargeable to the populace as a whole. And the public will be forced to bear only the costs of injury inflicted by the "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy." In view of the foregoing, the Court reversed the decision of the Court of Appeals.

A municipality is not immune from liability flowing from its constitutional violations. An employee has the right to both procedural and substantive due process before he can be terminated. If you have been abused by a government entity and deprived you of your constitutional rights, seek the advice of a Suffolk Order of Protection Attorney. Whether you have been charged with theft, sex crimes or drug possession, contact Stephen Bilkis and Associates for assistance.

December 31, 2012

Probable Cause Questioned in Drug Crime

A police officer was on patrol in her cruiser. She noticed a pick-up truck which was swerving and crossing over the solid yellow line dividing the two lanes onto the opposite lane. Then the pick-up truck swerved sharply back to its lane. The police officer then put on her siren and emergency lights and pulled the pick-up truck over.

A New York Criminal Lawyer said when the police officer pulled the pick-up truck over, she went to talk to the driver. She noticed that the driver’s eyes were glassy and red. She noted the smell of alcohol on his breath and the smell of alcohol coming from the interior of the truck. The man’s speech was slurred and he walked unsteadily. She conducted field sobriety test by asking the driver of the pick-up truck to stand on one leg. He dropped his other leg and could not stand on one leg. The officer asked the driver to also walk a straight line heel-to-toe and he could not do that, either.

The man admitted to the police officer that he’d drunk alcohol earlier that evening but he also said that he had already eaten and so he didn’t think that he was that drunk and was on his way home to sleep it off anyway. He also volunteered to the police officer that he had taken suboxone, a step-down drug from heroin addiction.

The police officer placed the driver under arrest for operating a motor vehicle while his ability was impaired by drugs. He was also charged with operating a motor vehicle while his ability was impaired by the combined influence of drugs and alcohol. He was charged with failing to stay in a single lane and failing to signal a turn and operating a vehicle with a modified muffler.

As the police officer was patting him down after he was placed under arrest, the police officer felt what turned out to be a small plastic sachet in his pocket. When the police officer took the object, it turned out to be a small plastic sachet with white powder. The driver apologized and said that he forgot that he had put the heroin in his pocket (heroin possession). The police officer had enough experience in narcotics from numerous drugs arrests in the past. She also filed the charge of criminal heroin possession.
The police officer made an affidavit of the facts within her personal knowledge from the time that she first noticed the pick-up truck until her arrest of the driver of the pick-up. She also put in her affidavit all the statements made to her by the driver of the pick-up as she was giving him the field sobriety tests on the side of the road after she had pulled him over.

The driver of the pick-up truck asked for the dismissal of the drug charge, the traffic violation charges and the driving with ability impaired charges. He claims that the information filed against him indicting him for these crimes was not based on sufficient and legally acceptable evidence. The defendant claims that the police officer’s affidavit contained conclusory pronouncements and not facts. In particular, the driver of the pick-up truck puts in issue how the police officer could have known that what was seized from him was indeed heroin at the time she seized the plastic envelope and arrested him for criminal heroin possession.

An NYC Criminal Lawyer said the only question is whether or not the charge of criminal heroin possession should be dismissed on the basis that the police officer could not have known that the white powdery substance was heroin.

The Court held that the police officer made the conclusion that the white powdery substance was heroin based on the statement made to her by the driver of the pick-up, by the fact that she was familiar with the smell and appearance of heroin having made a few drug arrests in the past; and the fact that the driver was driving with his ability impaired by a mixture of alcohol and drugs which he also freely admitted to the police officer during the traffic stop. All this constitutes probable cause on the part of the police officer. The motion to dismiss the charge of criminal heroin possession is dismissed.

Are you charged with criminal heroin possession? Was the heroin seized from you consequent to a routine traffic stop? You need the assistance and counsel of a New York City Drug Crime Lawyer. A New York Drug Crime attorney will explain to you the nature of the charges against you and advice you as to what your options are. Speak with any of the NYC Drug Crime lawyers from Stephen Bilkis and Associates who can represent you. Whether you have been charged with drug possession, theft or sex crimes, they can help.

December 30, 2012

Defendant Claims Due Process Rights Violated in Drug Charge

The police in Brooklyn suspected that a drug repacking business was carried out in an apartment building by the members of one family. They wrote down all the facts they have so far gathered about the heroin-repacking business in an affidavit and they applied for a search warrant. The judge granted them a search warrant and twelve officers formed a raiding party that would serve the search warrant.

When the police arrived at the ground floor of the building, a man was coming out. A New York Criminal Lawyer said when the police announced their presence, the man slammed the front door of the apartment building in the policemen’s faces. He then climbed the stairs to the second floor apartment screaming.
The police used a battering ram to enter the building and they used the same battering ram to gain access to the apartment since the apartment door had been locked and no one was answering the door.

By the time the police officers came into the apartment, no one was in the common dining area. On the dining room table, there were plastic sachets already filled with small quantities of heroin (heroin possession). Each plastic sachet had a stamp-marked piece of paper that had a brand name on stamped on it. There was a big plastic bag that had five ounces of heroin in it, a weighing scale, dilutant, playing cards that had been folded up and used to cut the heroin powder into portions. There were spoons used for scooping the powder, rubber stamp markers and ink marker stamp pads on the table as well. Under the table, there was a duffel bag filled with boxes of identical plastic sachets; there were pieces of paper with the stamp-marked brands; there was cash in small bills.

The police found a woman and her husband in the bedroom, two men in the bathroom holding an empty plastic bag with heroin residue on it and the water in the toilet bowl murky, milky white. There was a fifth man in a second bedroom and he was holding a chair that he had used to smash open the bedroom window that led to the fire escape. All five people were arrested and charged with: knowingly possessing heroin; heroin possession with intent to sell; and possession of drug paraphernalia.

An NY Criminal Lawyer said that during the trial, all the five codefendants pleaded not guilty. They all claimed that they were all the accused woman’s guests at a baby shower she was having at her apartment. All the defendants disclaimed that they knew anything about the drug paraphernalia or the heroin on the dining table. They all claimed that they knew nothing about the drug repacking. They disclaimed any knowledge about the amount of heroin found in the apartment. They all harped on the fact that no drugs were found on their persons and none of the drug paraphernalia was found on them personally. They all presented evidence that they were nowhere near the drugs on the dining table and that they were in other parts of the apartment at the time that the drugs were in the dining room.

After the presentation of evidence for both the prosecution and the defense, the trial court charged the jury and listed down for them all the elements of the crimes charged against all the five co-defendants. One of the elements was the presumption that the law makes that even if the people in the apartment were in other parts of the apartment, they are presumed to know the quantity of the heroin on the dining room table.

All five accused were found guilty of knowingly possessing heroin and heroin possession with intent to sell. They were all acquitted of the charge of possession of drug paraphernalia. The woman accused filed a motion to vacate her conviction on the ground that there was no sufficient evidence adduced at trial that she had knowledge of the amount of heroin there was. She claimed that this is one of the elements of both crimes, that she knew the amount of heroin she had in her apartment.

The Court held that the woman never alleged that there was a violation of her right to due process of law in the service of the search warrant or her arrest. She did not preserve this issue on appeal and she did not raise the specific issue of the insufficiency of the evidence against her except in her motion to vacate her conviction. There is no amendment of the law that removes the presumption of knowing the amount of heroin possessed. Her motion to vacate conviction is denied.

Were you accused of knowingly possessing heroin and heroin possession with intent to sell? You must be represented by a New York Drug Crime Lawyer. A New York City Drug Crime Lawyer can help you make sense of the proof required to convict you. At Stephen Bilkis and Associates, their NYC Drug Crime lawyers are willing and ready to sit with you and formulate a viable defense that can raise reasonable doubt. Whether you have been charged with drug possession, sex crimes or theft, they can help.

December 23, 2012

Court Discusses the Elements of Burglary

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

Charges of larceny and burglary were brought against him. The larceny charge was brought for the taking of the television while the charge of burglary was charged for breaking and entering into the house owned by another person for the purpose of committing a crime.
The criminal information filed against him alleged that sometime on May 9, 1976 in Dade County, the man unlawfully entered the house owned by VA, the owner and custodian of the home with intent to commit the offense of petit larceny.

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

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

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

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

The Court also held that it was sufficient to allege in the indictment or criminal information that the dwelling house was owned by another person, that is, a person other than the accused. Here, the person alleged in the indictment as the owner was a person different from the real owner. Under the existing jurisprudence, the term “owner” may include a person possessing the premises even if he or she is a mere tenant. The Court held that what was important was to prove the fact that the house was owned and possessed by another other than the defendant.
Are you charged with larceny, drug possession or sex crimes? You will need representation by a Florida Criminal Lawyer. A Florida Criminal attorney will explain to you what the charges mean. The Florida Criminal Attorneys from Stephen Bilkis and Associates will explain to you what evidence needs to be presented in your behalf. Call, or better yet, visit the offices of Stephen Bilkis and Associates. Speak with any of their Florida Criminal Lawyers and find a lawyer who can assist you in your defense.

December 15, 2012

Court Discusses Intent in Petit Larceny Charges

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

The Issue of the Case:
The sole issue for the court to resolve is whether one can be convicted of entering without breaking with intent to commit a misdemeanor on a charge of breaking and entering with the same intent.

The Ruling of the Court:
In the landmark case of Long v. State, the court’s ruling is predicated upon the principle that where an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged. In essence, it is a matter of due process; that an accused is entitled to know what he has to defend against. However, the court finds that it must be put in its proper perspective depending upon the statute involved. Under the Long statute, the first alternative is specific in its terms, i.e., the smuggling into a jail of a tool calculated to assist a prisoner in escaping; the second alternative is general, i.e., aiding, by any means whatsoever, a prisoner in his endeavors to escape. A specific charge made under the first alternative, then, would preclude a conviction under the second, absent evidence of the specific tool allegedly smuggled in, because as to the second there was no notice to the defendant that he would be tried under the broad and general provisions thereof. If it were the other way around, however, that is, if the defendant were charged with the second alternative, viz., aiding in the escape endeavors, he could not be heard to complain if the evidence established that he smuggled in a tool used in the escape. Thus, due process considerations clearly come into play under the Long statute depending upon which alternative is made out in the charge. However, in the landmark case of Skov v. State or simply the Skov statute, while there are also two ways to commit the same offense, the essence of the charge, to wit: the unlawful entering with the requisite intent, is common to each alternative. Thus, no due process considerations come into play when the charge is made out under the first alternative and the evidence establishes the second. The court held that such, like the conviction in the case at bar, cannot stand.
In other words, the pertinent statutes in both Long and Skov describe two ways in which the same offense can be committed. But there is a distinction between these statutes. Under the Skov statute every element necessary to convict under the second alternative is also among the same elements necessary to convict under the first; whereas, under the Long statute the elements of either one of the alternatives is not necessarily included among the elements required to convict under the other. There are circumstances under which a person might be convicted under the first alternative under the Long statute but not be guilty under the second, and there are circumstances where a person might be convicted under the second alternative of the Long statute but not be guilty under the first. A Nassau County Criminal Lawyer said while there are circumstances where a person could be convicted under the second alternative of the Skov statute and not be guilty under the first, there is no way that a person can be convicted of breaking and entering with intent to commit a misdemeanor and not also be guilty of entering without breaking with intent to commit a misdemeanor. The unlawful entry is the gravamen of the offense and that element is present in each alternative.

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

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

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

December 13, 2012

HIV Positive Defendant Charged With Biting Victim

The parties of the case had a quarrel between them wherein the defendant had bitten the complainant during their squabble. A New York Criminal Lawyer said the People filed a motion to order the removal from medical records and non-disclosure of the HIV status of the victim from the defendant. The ground for such an order is based on the complainant’s right to privacy and confidentiality as opposed to the right of information by the defendant.

The court held that grant of the order to redact all references to the HIV status of the private complainant but sought to inform the defendant of such through a physician or health officer. The court ruled that the defense lawyer has the prerogative to disclose the sensitive information to his client but recommended that it be made through a medical doctor or health official.

The parties are residents at an apartment building and both lived in the same floor. In one incident, the defendant thrown anti-gay expressions towards the complainant and subsequently punched the victim’s face and body. Later, the parties had another argument that resulted to the biting of the defendant over the shirt of the complainant which caused the latter’s skin to break. The accused was also alleged to have possession of a knife and that he pushed himself inside the complainant’s apartment. The sister of the victim called 911 who informed the medical attendants that her brother is with HIV and such information was written down in his medical records during his medical treatment at the hospital.

The offender was arrested and indicted for several penal crimes such as assault, menacing, criminal possession of a weapon and criminal trespass.

During the discovery process, the prosecutors handed over to the defense counsel the medical report of the complainant which contained information about his HIV status. The defense attorney learned of the matter, thus, returned the original medical report to the prosecution and asked for another record which did not include reference of the HIV status of the complainant. Hence, the filing of an “ex parte motion” for a protective order by the prosecution before the court to omit the victim’s HIV status in the medical records and to disallow the defense lawyer from disclosing such fact with the latter’s client. On the grounds of public scrutiny, discrimination and potential physical attack and which could jeopardize the career of the complainant were among the reasons why the motion was filed the prosecutrion.

As provided in a particular statute, "no person who obtains confidential HIV related information in the course of providing any health or social service or pursuant to a release of confidential HIV related information may disclose or be compelled to disclose such information ..." And it further stated that “Additionally, no person who receives confidential HIV information is allowed to disclose the information unless authorized.” The purpose of such law was to allow people to take HIV test without any worry as to discrimination and to protect the person’s right to privacy. But the law also provided the court discretion for the disclosure of such information when there is "a clear and imminent danger to an individual whose life or health may unknowingly be at significant risk ..."

A Long Island Criminal Lawyer said the main issue to be resolved in the case at hand is the balance between the rights of privacy of the infected individual as against the right of the person to know so that he could be tested and treated.

The imminent danger being pertained by the statute is in favor of the unknowing person whose health is at risk for failure to be informed of his potential HIV infection that would require medical treatment. Therefore, disclosure must be made to unknowing individual in any case.
Consequently, the court granted the protective order to redact the information in the medical report and other pertinent documents but such information should be disclosed to the defendant through a physician or health officer.

The constitution provides the primordial rights of every individual are entitled to have and such rights must be protected at all cause especially before the court. If you are a defendant or an accused facing charges, whether it is for assault, drug possession or sex crimes, you must hire a counsel to ensure that your rights are upheld and at Stephen Bilkis and Associates we provide legal services through our competent and experienced lawyers that are of service to your cause.

December 12, 2012

Court Discusses Grand Larceny vs. Petit Larceny Charges

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

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

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

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

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

The Court held that intent to commit grand larceny can usually be proven by evidence that grand larceny was indeed committed. To prove grand larceny, it is not enough to prove that property was taken, there must also be proof that the property taken had a value above one hundred dollars.

The value of the property taken, however, is not the only circumstance from which intent to commit grand larceny can be inferred. A Brooklyn Criminal Lawyer said if there other facts are proven that show intent to commit grand larceny, then even if the grand larceny count is not proven, and the accused is proved to have only committed petit larceny, this does not negate that there was intent to commit grand larceny. It is possible that the bogus delivery man had the intent to commit grand larceny but because of supervening circumstances, he was only able to take property worth less than one hundred dollars and was convicted only of petit larceny.

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

Were you charged with breaking and entering with intent to commit grand larceny, drug possession or sex crimes? A Florida Criminal Attorney can advice you if the prosecution has presented sufficient evidence to prove the charge. Call or visit any of the offices of Stephen Bilkis and Associates in Florida. Speak with any of their Florida Criminal attorneys.

December 11, 2012

Court Distinguishes Between Petit Larceny and Felony Petit Larceny

The state charged appellant with armed robbery and resisting a merchant. The jury found her guilty of the lesser included offense of petit theft and resisting a merchant. The trial court adjudicated her guilty of the two misdemeanors. At sentencing, however, the court reclassified her conviction pursuant to section 812.014(2)(c), based on her prior theft convictions. A West Palm Beach Petit Larceny Lawyer said that, appellant stipulated at pretrial that she had nine prior misdemeanor convictions. A New York Criminal Lawyer said the information, however, did not make reference to the prior convictions, nor did it charge her with a felony petit theft. On that ground, appellant contends that the trial court erred when it reclassified her petit theft conviction to felony petit theft.

The issue in this case is whether the Court erred in reclassifying appellant’s conviction of petit theft to felony petit theft (petit larceny).

Ina 1991 case, the court stated: A charging document must provide adequate notice of the alleged essential facts the defendant must defend against. In recognition of this concern, Florida Rule of Criminal Procedure 3.140(b) provides that an "indictment or information upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." The Court then referred to its prior opinion in a 1978 case: the Justice concluded for the Court that the felony petit larceny statute "creates a substantive offense and is thus distinguishable from section 775.084, the habitual criminal offender statute." The felony DUI statute is indistinguishable in this regard. The Court concludes that the existence of three or more prior DUI convictions is an essential fact constituting the substantive offense of felony DUI. Having established that the existence of prior DUI convictions is an essential element of felony DUI, it necessarily follows that the requisite notice of prior DUI convictions must be given in the charging document.

A Bronx Criminal Lawyer said the state cites the 1978 case in support of its argument that because it charged appellant with grand theft and the jury convicted her of a lesser included offense of petit theft, the charging document need not allege the prior thefts before an accused may be found guilty of felony petit theft. In the said case, the court said:

We also agree that when felony petit theft is the only felony with which an accused is charged, the charging document must make clear that felony petit theft is being charged in order to invoke the jurisdiction of the circuit court. We do not agree, however, that prior thefts must be alleged in the charging document and proved in all instances before an accused may be found guilty of felony petit theft. Rather, we agree with our sister court's statement that if such a procedure were required, the state would have to charge the crime of felony petit theft, in the alternative, in every case that a jury could find the defendant guilty of petit theft as a lesser included offense of the crime actually charged.

The Court finds the reasoning in the 1978 case persuasive, but note that said case preceded the Supreme Court’s opinion and its discussion therein of the 1991 case. Based on the 1991 case, the Court concludes that the state must allege the elements of the felony petit larceny statute in its charging document if it intends to proceed under section 812.014(2)(c).

Accordingly, the Court held that the trial court erred when it reclassified appellant's conviction to felony petit theft. The Court reversed appellant's felony petit theft conviction and remands this cause to the trial court with instructions to enter a judgment of conviction for petit theft and to sentence appellant consistent therewith.

If you have been charged of the crime of petit larceny, grand larceny, drug possession or sex crimes, seek the legal advice of a West Palm Beach Petit Larceny Attorney and West Palm Beach Grand Larceny Attorney in order to protect your constitutional rights to due process while trying your case. Our West Palm Beach Criminal Attorney at Stephen Bilkis and Associates can competently handle your case. Call us for free consultation.

December 5, 2012

Court Looks at Intent to Commit Petit Larceny

A man went to a house in a residential neighborhood. It was eleven thirty in the evening and all the three residents of the house were fast asleep. The man went up the roof and was preparing to enter the house through a bedroom with an open screened window.

A New York Criminal Lawyer said tne resident of the house was fast asleep in the bedroom as the man was trying to enter through the screen window. The noise made by the man outside the window woke the resident of the house. He had a .25 caliber hand gun in a drawer in his bedside table. He cried aloud and said “Who’s there?” When the man crouched down in an attempt to hide, the occupant fired a warning shot.

Another occupant called an emergency hotline and the man was unable to get down from the roof until the police got there. The man was charged with attempted breaking entering with intent to commit grand larceny. It was alleged that the three occupants in the house had cell phones, laptop computers and other valuables inside the house which could have been what the prowler intended to take.

The man pleaded not guilty and he moved for a trial without a jury. His request was granted and evidence was presented against him. The occupant who fired the warning shot testified against him. The criminal trial court found the man guilty beyond reasonable doubt of a lesser included offense of attempted breaking and entering with intent to commit petit larceny.

The man appealed from the judgment of conviction. An NYC Criminal Lawyer said he claims that his conviction for attempted breaking and entering with intent to commit petit larceny is not supported by the evidence presented by the prosecution. He claims that no proof was presented of the specific intent that he intended to commit petit larceny.

The only question before the Court is whether or not the specific intent to commit petit larceny was proved.

The Court held that the intent to commit petit larceny can be inferred from the circumstance of each case. Here, the circumstances which convinced the trial court judge that the man intended to commit petit larceny was duly proved. The man went to the house in the dead of night. He used the cover of darkness to try to gain entrance to the house. He chose a vulnerable spot in the house, a second floor window that was opened and was protected only by a screen. The second floor window was accessible only by climbing up from the side of the house. The man then crouched down and tried to open the window. The question that comes to mind is, why would anyone go through all that trouble if he did not intend to commit larceny? The man had no business being atop a roof trying to gain entry into a house through an open window if he did not have the specific intent to commit the crime of petit larceny.

There was also proof that the three occupants of the house had valuables in the house. They had household appliances, jewelry and gadgets which would have been easy to take and asport. In this case, the trial judge who heard the evidence had the sole discretion to determine if specific intent can be inferred from the circumstances proved by the prosecution.

The Court held that the trial court did not err in inferring specific intent to commit larceny.
Have you been charged with attempted breaking and entering with intent to commit larceny? You need the advice of a Florida Criminal Lawyer who can explain to you the nature of the charge against you. A Florida Criminal attorney can help you gather evidence to prove that you had not commit larceny. At Stephen Bilkis and Associates, their Florida Criminal lawyers are willing to represent you, whether you have been charged with drug possession, sex crimes or theft.

December 4, 2012

Defendant Contests Risk Assessment Designation

Defendant W. was arrested for acting in concert with J.S. in allegedly committing the crimes of Kidnapping in the First Degree (Penal Law § 135.25 [1]), Rape in the First Degree (Penal Law § 130.35 [1]), Sodomy in the First Degree (Penal Law § 130.50 [1]), and Unlawful Imprisonment in the First Degree (Penal Law § 135.10), against one Sabrina on May 3, 2000, in the vicinity of East 233rd Street and White Plains Road in Bronx County. Defendant and co-defendant J.S. were subsequently indicted for all of the above charges. In the felony complaint, it was alleged that Defendant and J.S. detained S. in a car and refused to let her leave when she requested to do so. Further, when she attempted to get out, she was pulled back inside and her mouth covered when she tried to scream for help. Defendant and J.S. then held S. down while Defendant inserted his penis into her vagina and J.S. inserted his penis into her mouth, both without her consent. At the time of his arrest, when told that he was being charged with rape, Defendant responded, "I kind of had that feeling." He was subsequently identified by both Sabrina and an eyewitness in separate corporeal lineups.

A New York Criminal Lawyer said that, in the course of the Grand Jury presentation, it was established that S. was with her friend R. R. knew Defendant and talked to him while S. was standing close by. S. and R. got into the back seat of the vehicle. When R. got out purchasing some cigarettes or marijuana, Defendant drove off with S. S. called to R. for help. However, S. pulled her back into the car. Defendant proceeded to drive to a parking lot. He then got into the back seat, grabbed S's thigh and demanded that she place his penis into her mouth. Thereafter, Defendant removed S's pants, held her hands down, and engaged in sexual intercourse with her against her will. L.S. then inserted his penis into S's mouth and masturbated into her mouth while Defendant held her hands down as she was repeatedly shouting, "No." L.S. then struck S. in the mouth. Afterwards, Sabrina was driven to within one block of her home and forcibly thrown out of the car.

A Brooklyn Criminal Lawyer said DNA tests performed on the victim and Defendant revealed that his semen and that of another male were found on a vaginal swab of the victim as well as on her panties.

A New York Sex Crimes Lawyer said that, defendant pled guilty to the lesser included offense of Attempted Sexual Abuse in the First Degree. He received a sentence of an indeterminate term of imprisonment of from one and one-third to four years. In the course of his allocution, the People stated that if this matter had gone to trial, "the People would have proven that on May 3rd of the year 2000, this defendant did, by forcible compulsion, force the complainant in the case, Sabrina, to have sexual intercourse with him. Defendant then admitted under oath, "I had sex with her without her consent".

A Bronx Criminal Lawyer said that, in preparation for his sentencing, Defendant was interviewed by the Department of Probation for a Pre-sentence Report. The report noted that, Defendant admitted his guilt, showing no remorse. The Defendant stated that he had sex with his ex-girlfriend. It further noted that this crime is evidence of the Defendant's sexually deviant and aggressive behavior and that Defendant appears in need of a counseling program to determine the reason for his actions. Defendant also acknowledged that he has been using alcohol since age nineteen; however, he claimed that he does not abuse it.

A Bronx Criminal Lawyer said that, the Board of Examiners of Sex Offenders submitted a Risk Assessment Instrument. It recommends designating Defendant as a Sexually Violent Offender based on his conviction for Attempted Sexual Abuse in the First Degree. It also recommends classifying Defendant as a Risk Level 2 based on an assessed score of 95. Specifically, the Board assessed: 10 points for use of forcible compulsion; 25 points for sexual intercourse, deviate sexual intercourse or aggravated sexual abuse with the victim; 20 points for being either a stranger to the victim or having a relationship established for the purpose of victimizing or a professional relationship; 5 points for a criminal history with no sex crimes or felonies; 15 points for a history of drug crimes or alcohol abuse; and 20 points for unsatisfactory conduct while confined or supervised including sexual misconduct.

Defendant argues at a risk assessment hearing that this designation is incorrect, that it should actually be a lower Risk Level 1. Specifically, he contends that the Board erred in adding 25 points for his engaging in sexual intercourse, deviate sexual intercourse, or aggravated sexual abuse with the victim. Defendant contends that because he was convicted of an attempt, he is not guilty of any of the abovementioned overt acts. Therefore, he should have received zero points under the factor "sexual contact with victim," which would bring his total score to 70, rather than the 95 presumptive points assigned him.

The issue in this case is whether the Board erred in their recommendation designating defendant W. as a Risk Level 2 Sexually Violent Offender upon his release from custody.
In 1994, Congress enacted the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program, commonly known as "Megan's Law." This Act called for the Attorney General to establish guidelines that required each state to establish a program for persons convicted of a sexually violent offense to register with an appropriate state agency. As a result of this Federal mandate, in 1995, the New York State Legislature enacted Article 6-C of the Correction Law: The Sexual Offender Registration Act (SORA).

Pursuant to SORA, the Board developed guidelines and procedures to assess the risk of a repeat offense by a sex offender and the threat that person posed to the public safety. Based on these factors, the Board recommends to the sentencing court whether a defendant warrants the designation as a sexual predator, sexually violent offender, or predicate sex offender as defined in Correct Law § 168-a (7), as well as which of three levels of notification the defendant should be assigned based upon "the risk of a repeat offense." The offender's risk level determines the amount of information that can be disseminated about him to the public under the Act's notification procedures and the threat posed by a sex offender depends upon two factors: (i) the offender's likelihood of re-offense and (ii) the harm that would be inflicted if he did reoffend.
The two risk assessments levels that are pertinent to the case at bar are:

(a) If the risk of repeat offense is low, a level one designation shall be given to such sex offender. In such case the law enforcement agency or agencies having jurisdiction and the law enforcement agency or agencies having had jurisdiction at the time of his or her conviction shall be notified pursuant to this article. (b) If the risk of repeat offense is moderate, a level two designation shall be given to such sex offender. In such case the law enforcement agency or agencies having jurisdiction and the law enforcement agency or agencies that have had jurisdiction at the time of his or her conviction shall be notified and may disseminate relevant information which shall include a photograph and description of the offender and which may include the name of the sex offender, approximate address based on sex offender's zip code, background information including the offender's crime of conviction, modus of operation, type of victim targeted, the name and address of any institution of higher education at which the sex offender is enrolled, attends, is employed or resides and the description of special conditions imposed on the offender to any entity with vulnerable populations related to the nature of the offense committed by such sex offender. Any entity receiving information on a sex offender may disclose or further disseminate such information at its discretion.

In determining the risk level, the Board has promulgated fifteen factors that are divided into four categories. These guidelines are based on an individualized approach that is mandated by Federal statute, and they are designed to "eschew per se rules so that risk should be assessed on the basis of a review of all pertinent factors". Under each factor, "the court should look to the most serious wrongdoing in each category", and only one of the options is chosen if any are applicable. If the aggregate score from all of these factors is 70 points or less, the offender is presumptively a risk level one. If it is more than 70 but less than 110, he is presumptively a risk level two.

Under SORA, a Sexually Violent Offender is any sex offender convicted of a sexually violent offense, which includes a conviction for Attempted Sexual Abuse in the First Degree. Therefore, Defendant, who has been convicted of this crime, has properly been categorized as a Sexually Violent Offender.

Likewise, defendant was properly classified as a level-two sex offender. This classification "was supported by clear and convincing evidence, based on the facts contained in the Board's Case Summary and Risk Assessment Instrument."

This Court notes that Defendant's reliance on Maldin, is misplaced. In that case, the court, as here, relied upon the victim's statements to police as contained in the Pre-Sentence Report and not just the final charge. These statements indicated that the defendant engaged in multiple acts of sexual misconduct with the victim, but only attempted to engage in deviate sexual intercourse. The Third Department held that the guidelines were misapplied by adding points for engaging in deviate sexual intercourse since the "deviate sexual intercourse contemplates commission of specific sexual acts rather than attempted commission of those acts as occurred here." By contrast, here, when reviewing the victim's statements, and not just the final charge, it is clear that there were completed acts of sexual intercourse by Defendant and that he also acted in concert in allowing deviate sexual intercourse to be completed against the victim. His argument as to the 25 points being misappropriated to him thus fails.

By virtue of his conviction, the Court finds Defendant a Sexually Violent Offender. Additionally, Defendant is appropriately classified as a Risk Level 2. The felony complaint, Grand Jury testimony, victim's statement and Pre-sentence Report all establish by clear and convincing evidence that Defendant used forcible compulsion (10 points), had sexual intercourse with the victim and acted in concert with co-defendant Scott in having deviate sexual intercourse with her (25 points), and that the Defendant and victim were strangers (20 points). Indeed, Defendant acknowledged in his sworn guilty plea and statement in the Pre-Sentence Report that he engaged in sexual intercourse with the victim against her will. The fact that Defendant pled to a lesser included offense is of no consequence. Although Defendant claims that he and the victim knew each other, the self-serving statement does not overcome the clear and convincing evidence that he and the victim were strangers as established.

In addition, Defendant's rap sheet indicates that he has a prior misdemeanor conviction (5 points), which he does not contest. Likewise, the Case Summary indicates that Defendant has admitted to abusing alcohol on the night of the incident and to completing a substance abuse program for his addiction (15 points).

Moreover, the Case Summary also indicates Defendant had disciplinary problems while in custody, including an act of sexual misconduct (20 points). Specifically, "during a visit with his wife and mother, [he] was observed with his hand `in between his wife's legs, outside of clothing, rubbing her crotch vigorously.' He also was placed in Protective Custody in May 2003 after being slashed on his face for gang activity, i.e., `unauthorized organization activity'". Therefore, Defendant was appropriately assessed a total of 95 points and classified as a Risk Level 2, and the Court so finds.

Thus, the Court ordered, that Defendant is hereby adjudicated a Risk Level 2 Sexually Violent Offender.

If you have been a victim of a crime, seek the advice of a Bronx Criminal Attorney and/or Bronx Drug Crime Attorney. Stephen Bilkis and Associates can help you with your case and see to it that justice will be served.

December 3, 2012

Court Discusses Lesser Included Offenses

A man was charged with breaking and entering with intent to commit a felony. He was convicted of the lesser included offense of breaking and entering or entering without breaking with intent to commit a misdemeanor. He appeals the judgment and sentence.

A New York Criminal Lawyer said the man recognizes that the court, when confronted with such a verdict and judgment, remanded the case to the trial court with instructions to enter judgment and sentence on the lesser of the included offenses referred to in the verdict. He requests that the Court reconsider such previous ruling. It has subsequently developed, however, that the District Court of Appeal has overruled and receded. Upon consideration of the opinion, the Court agrees with the general reasoning but go a step further. The Court of Appeal construes the crime of breaking and entering or entering without breaking as a single crime rather than two different crimes.

The information charged three elements including unlawful breaking, unlawful entry and the intent to commit petit larceny. The jury found the man guilty of two of the three elements set forth in the accusatory pleading by finding that he had made an unlawful entry with intent to commit petit larceny. These two elements constitute a crime just as surely as did the three elements charged. By all standards entering without breaking seems to meet the definition of a category necessarily included offense to breaking and entering.

A Suffolk Criminal Lawyer said the Second District Court went on to say that the problem seems to stem from the fact that both of the offenses are proscribed in the disjunctive known as “breaking and entering with intent to commit a misdemeanor.” Whoever breaks and enters, or enters without breaking, any dwelling, storehouse, building, ship, vessel, aircraft, or railroad car with intent to commit a misdemeanor shall be guilty of a felony of the third degree.

Hence, it is not a matter of greater visa-vis lesser included offenses in the sense that the lesser is considered to be an independent offense which is included within the offense defined as greater.

The past difficulty the courts have had in placing the two facets of the above quoted criminal statute in the mold of greater and lesser included offenses is that the statute in reality does not define two separate offenses. It defines only one offense which may be committed in either of two ways--by breaking and entering or by entering without breaking. As pointed out by a judge, the gravamen of the offense is unlawful entry with intent to commit a misdemeanor. It is physically impossible for an unlawful entry to be made other than by breaking or entering without breaking. It makes absolutely no difference as far as this crime is concerned whether the unlawful entry was made by one or the other of the only two possible means. A person charged with this crime knows from its definition in the statute that he must be prepared to defend against proof of either of the two means of unlawful entry. Whether the jury finds that the accused unlawfully entered by breaking or by entering without breaking or by breaking or entering without breaking, makes no difference as to the validity of the verdict, judgment and sentence. Either verdict states that crime set forth in the statute. Each of the foregoing three alternatives states one and the same crime as defined by the statute and carries the single penalty prescribed by the statute. The man, as aforesaid, was charged with breaking and entering with intent to commit grand larceny and was convicted of breaking and entering or entering without breaking with intent to commit a misdemeanor. The court finds that the criminal act for which he was convicted is a lesser included offense of the crime charged.

When we are at the receiving end of a crime, we want the person who hurt us to be charged of all offense possible. The opponent however, would do whatever it takes to lighten the crime made. If you want to make sure that you get the justice you deserve, consult a NYC Petit Larceny Lawyers or a NY Grand Larceny Attorney. Stephen Bilkis and Associates’ NYC Criminal Lawyers will make sure that your offender will get the punishment that he deserves, whether he is charged with sex crimes, drug possession or theft.

December 2, 2012

Defendant Contends Court Lacks Jurisdiction

In this criminal case, appellant was informed against in the Criminal Court of Record of West Palm Beach County for grand larceny. A New York Criminal Lawyer said that, he was arraigned on the information and entered a plea of not guilty. At the beginning of the trial, which was held before the trial judge without a jury, the county solicitor made the announcement in open court and said that: 'In this case, the State is going to attempt to prove petit larceny and not grand larceny.' A West Palm Beach Petit Larceny Lawyer said that, after this announcement the county solicitor submitted evidence to prove that the charge contained in the information constituted petit larceny; and the trial court found the defendant to be guilty of petit larceny. Thereafter, a judgment of conviction was rendered and the defendant, as a result, appealed to this Court.

A Nassau County Criminal Lawyer said that, the Attorney General has moved to dismiss the appeal on the ground that the court is without jurisdiction to entertain an appeal for a misdemeanor conviction. A West Palm Beach Grand Larceny Lawyer said that, the defendant contends that inasmuch as the information upon which the defendant was arraigned charged a felony this Court has jurisdiction of the appeal.

The issue in this case is whether the appeal of the appellant should be dismissed on the ground that the court is without jurisdiction to entertain an appeal for a misdemeanor conviction.
The Court in deciding the case cited the provisions of Section 11 of Article V of the Constitution of Florida, F.S.A., provides that 'The Circuit Courts shall have final appellate jurisdiction of all misdemeanors tried in Criminal Courts.' The Court has its opinion that in view of the announcement made by the county solicitor at the threshold of the trial, the present case was a misdemeanor tried in the Criminal Court, within the purview of section 11 of Article V.

The Court said that, had the information upon which the defendant was arraigned charged in two separate counts the commission of a felony and a misdemeanor, respectively, there could have been no doubt of the right of the county solicitor to elect to dismiss as to the felony and proceed to trial on the misdemeanor. And, in such case, there could have been no question that an appeal by the defendant from a judgment rendered on the misdemeanor count would have been to the Circuit Court of West Palm Beach County.

The Court held that, in principle, this Court can see no difference between such a situation and the one involved here, wherein the county solicitor announced that he was electing to try the defendant on the misdemeanor charge comprehended within the felony charged, and not for the felony. It follows from the conclusion reached that the motion to dismiss the appeal should be granted and the appeal dismissed. It is so ordered. Accordingly, the Court held that the motion of the appellees to dismiss the appeal is granted, and the appeal is hereby dismissed.

The Constitution of Florida provides that, 'The Circuit Courts shall have final appellate jurisdiction of all misdemeanors tried in Criminal Courts. If you are involved in a similar situation in the case at bar, such as you have an appeal for misdemeanor convictions for crimes such as petit larceny or grand larceny, you will need the assistance of a West Palm Beach Petit Larceny Attorney and West Palm Beach Grand Larceny Attorney in order to assist you in the filing of your appeal. Without the help of a West Palm Beach Shoplifting Defense Attorney, you will lose your right to appeal, and probably lose your case. At Stephen Bilkis and Associates, we have competent and reliable lawyers who can help, whether you have been charged with sex crimes, theft or drug possession, and make sure that they will exhaust all the possible grounds that your case may have for an appeal.

December 1, 2012

Court Discusses Mental Hygiene Law

The state of New York is the petitioner in this case. E. T. is the respondent. The case is being heard in the Supreme Court of Bronx County. The New York State Attorney General filed a petition stating that the respondent, E. T. is a detained sex offender who requires civil management according to the Mental Hygiene Law, article 10.

Case Background

A New York Criminal Lawyer said the respondent pleaded guilty to sexual abuse in the first degree on the 31st of January, 2001. He was sentenced on the 2nd of March, 2001 to a term of five years incarceration in a state prison. His sentence included five years of probation after his release from prison.

The two victims of the case were seven and eleven years old. The respondent’s sexual abuse of the seven year old included anal rape and sodomy and the abuse of the eleven year old included fondling the child’s breasts and genital area.

The respondent was released from prison on the 17th of June, 2005. In 2006, the Division of Parole reported that the respondent had violated a condition of his parole when he left the state of New York without permission. As a result, his parole was revoked and he was returned to prison for the remainder of his post release term. His set release date was approximately the 23rd of January, 2011.

The State filed the petition on the 14th of January, 2011 claiming that the respondent was a detained sex offender requiring civil management. A probable cause hearing was held in this matter on the 26th of May, 2011. At the hearing, Dr. Katrina Colistra testified on behalf of the State. Dr. Colistra contends that the respondent suffers from a mental abnormality and that he should be subject to the civil management provisions as described in Article 10 of the Mental Hygiene Law.

Court Discussion and Decision

The testimony provided by Dr. Colistra shows that the respondent suffers from pedophilia and an antisocial personality. She states that these conditions predispose him to commit sexual offenses. A Suffolk County Criminal Lawyer says she also testifies that these disorders affect his emotional, cognitive, and volitional capacity in such a way to predispose him to commit sexual acts against young girls.

The opinion of Dr. Colistra is based on an extensive analysis of the respondent. This includes his history of sexual and nonsexual offenses, his history of sex offender treatment, his mental health reacords, his DOCS records, and her own interview with the respondent.

Based on the credible history that has been provided by the State, the Court has reason to believe probable cause exists to believe that the respondent suffers from a mental abnormality and as a result poses a threat to the community. It is believed that if the respondent were released he would pose a threat to the community if he was left without supervision.

A New York Sex Crimes Lawyer said that the Mental Hygiene law requires that if a court finds probable cause to believe that a person is a sex offender that requires civil management that the court must order the person to be committed to a secure treatment facility pending the outcome of an Article 10 proceeding. The court has determined the respondent poses a potential threat to society and for this reason a pre-trial commitment hearing will be scheduled.

If you are in need of a lawyer, contact Stephen Bilkis & Associates. We will be happy to sit down and discuss your legal issue with you and help you determine your best course of action. Our offices are located in New York City. You may call any time to come in and speak with one of our lawyers in a free consultation.

November 29, 2012

Court Decides if it Erred on Classifying Accused as a Level One Sex Offender

A man lived in his mother’s house with his sister who was a minor. One day, the man chanced upon his sister in the bathroom of their house. The man tried to rape his sister. The sister resisted and was able to escape from her brother. A New York Criminal Lawyer said she reported the incident to their mother and she reported the incident to the police.

Her brother was charged with attempted rape in the first degree and sexual abuse in the first degree. Prior to the arraignment, the lawyer for the man asked the trial court to order a psychiatric evaluation of the accused. Two psychiatrists examined the accused and they had similar findings. The first psychiatrist rendered an opinion that the accused suffered from psychiatric disorders which were not specified. A second psychiatrist rendered an opinion that the accused suffered from psychosis. A New York Criminal Lawyer said both of them agreed on the finding that the accused was a threat to himself and to others but that he was fit to stand trial because he was capable of understanding the nature of the charges against him and he can assist in defending himself. Both psychiatrists also recommended that the accused be hospitalized. For this reason, the accused was placed under the custody of the Commissioner of Mental Health.

The accused pleaded guilty to sexual abuse in the first degree and he was sentenced to six months imprisonment and ten years probation.

After he pleaded guilty, the court then scheduled a risk-level hearing as mandated by the Sexual Offender Registration Act. The accused was interviewed and observed. A New York Drug Possession Lawyer said the People asked permission to review the accused’s medical and psychiatric record but the trial court denied the People’s request.

During the risk assessment hearing, the court was informed that the accused may be classified as a risk-level one offender. The People asked the court to reconsider its findings and to modify the classification of the accused as a risk-level-one offender. The People argued that given the accused’s many psychiatric illnesses, he should be classified as risk-level-three. His psychiatric deficiencies render him unable to control his impulses and may commit a similar rape in the future. The court denied the People’s request for a reclassification of the accused as risk-level three offender.

The People appealed the court’s determination. The only question before the Court is whether or not the trial court erred in classifying the accused as a risk-level one offender under the Sexual Offender Registration Act (SORA).

The Court held that under the SORA, the accused and the People are both given the opportunity to present evidence and to be heard on the issue of determining the risk level of the accused. Both the accused and the District Attorney can appear and also be given access records, materials from any hospital, office or agency to give the court all the opportunity to make an accurate determination of the risk the offender poses to society in general just in case he may have the propensity or tendency to commit the same sexual offense he had been convicted of.
The court then erred when it denied the People’s request to have access to the psychiatric reports and psychiatric records of the accused when he was evaluated and when he was confined under the custody of the Commissioner of Mental Health. A New York Sex Crimes Lawyer said this was a right of the People guaranteed to it under the SORA. The express mandate of the law overrides the privacy concerns of the accused especially when the safety and health of society in general is at stake if an accused is likely to commit a similar sexual offense in the foreseeable future.

The Court reversed the order of the trial court and the People’s request for leave to have access to the psychiatric records of the accused is granted. A hearing and new determination of the risk level of the accused is ordered.

Are you charged with rape? A Suffolk County Rape Lawyer can represent you at trial and at a risk-level hearing. A Suffolk County Rape attorney can help you present evidence to show that you are not likely to commit the same sexual offense in the future. At Stephen Bilkis and Associates, their Suffolk County Rape attorneys are ready and available for consultation. Call Stephen Bilkis and Associates today and ask to speak with any of their Suffolk County Rape lawyers so he can explain to you the nature of the charges against you, help you present a valid legal defense and present evidence at a risk-level hearing.

November 28, 2012

Court Contends Mental Hygiene Hearing was Unnecessary

This is a case for appeal being heard in the Third Department, Appellate Division of the Supreme Court in the State of New York. Mark S. is the appellant of the case and the State of New York is the respondent. Mark S. is appealing two orders that were made by the Supreme Court. The orders found the appellant to be to be a dangerous sex offender and confined him to treatment in a secure facility.

Case Background

A New York Criminal Lawyer said that the defendant has an extensive criminal and psychiatric history that includes being convicted for two rapes and forcibly touching three different females. He was charged with third degree rape, third degree sodomy, and endangering the welfare of a child by having sexual relations with a girl who was less that 17 years old in June of 2003. The defendant states that the sex with the young girl was consensual and he thought that she was 17, even though he had been told that she was younger. He pled guilty to the third degree rape charge in May of 2004 to satisfy all of the charges that were made against him. He was sentenced to five months in jail and ten years of probation.

While the defendant was on probation in October of 2004, he was charged with forcibly touching and forcibly grabbing the breasts and vagina of an 18 year old girl who worked for him at his drywall business. For this charge he entered an Alford plea and received two months in jail.

A New York Criminal Lawyer said that on December of 2004 a hearing was held and it was determined that the defendant was a risk level III sexual offender. During this same month the defendant was charged with first degree rape for an incident where he went with a friend to a girl’s apartment and held her down and raped her.

He was released for parole in December of 2006, but this was revoked a few months later when he was charged with numerous instances of violating the conditions of his release, including exchanging texts with a woman, viewing erotic content of women, and having prohibited contact with women.

Mental Abnormality Hearing

Before the defendant was released from prison, the petitioner began a Mental Hygiene hearing in Dutchess County, where the defendant was incarcerated. The court determined at this time that there was probable cause to believe that the defendant was a sexual offender that needed civil management.

A New York Drug Possession Lawyer said the court ordered that the defendant be placed in a secure treatment facility upon his release from prison upon a trial. The proceedings moved to Clinton County where the respondent waived his right to a jury trial. The judge in the case determined that the defendant suffers from a mental abnormality.

Case Discussion

The appellant argues that the ruling should be appealed as there was evidence provided in the hearing that should not have been admitted. However, when reviewing the Mental Hygiene Law it clearly states that the psychiatric examiners will be given full access to all of the defendant’s clinical, medical, criminal and other records and reports.

After reviewing the facts of this case it is felt that the Supreme Court did not abuse their discretion and that they correctly ruled in this matter. The motion for appeal is denied.


At Stephen Bilkis & Associates we offer free consultations to those visiting our offices for the first time. We are happy to discuss your legal matter with you to help you determine what your best course of action would be, whether you have been charged with theft, drug possession or sex crimes. We have several offices located throughout the city of New York for your convenience. Contact us today to set up an appointment to come in your legal matter.

November 27, 2012

Defendant Claims Grand Jury Direction was Incorrect

The People of the State of New York are the plaintiffs in this case against the defendant L.P. This case is being heard in the Supreme Court of the State of New York in Bronx County, Part C. The People have moved for an order to amend the direction of a duly empanelled Grand Jury from Bronx County to include the phrase “acting in concert with others” in the proof that was submitted in the case.

Case Background

A New York Criminal Lawyer said that on the 19th of February, 1986, the Grand Jury heard evidence against the defendant, L.P. in regard to crimes that allegedly occurred on the 11th of February, 1986. The incident included the defendant, two other males that were not found and a fourteen year old girl complainant. The complainant accused the defendant of accessorial sodomy and accessorial rape.

After the Grand Jury heard the testimony in the case they chose to not vote a True Bill, instead they directed the District Attorney to file the case in the Bronx County Criminal Court. The prosecutor was to charge the defendant of sexual misconduct, which was the lowest degree of crime which the defendant could be charged with.

The Grand Jury direction provides that there is reason to believe that the defendant committed the crime of sexual misconduct on or around the 11th of February and that he engaged in sexual intercourse with the complainant without her consent. A New York Criminal Lawyer said it is noted that the Grand Jury direction does not mention that the defendant acted in cohort with others. From this information the prosecutor’s information was drafted by the People.

The draft by the People states that The Grand Jury of Bronx County accuses the defendant of the crime of sexual misconduct as the defendant engaged in sexual intercourse with the complainant without her consent.

Court Discussion and Decision

To support the motion the District Attorney contends that the minutes provided by the Grand Jury clearly intend to have the language include that the defendant acted in cohort with others. The People further contend that the addition is nothing more than the correction of an obvious typographical error and ministerial oversight and does not change the theory of the prosecution.

The People did not file a formal motion to have the Grand Jury minutes inspected, but a copy of the Grand Jury minutes have been attached to their moving papers for the court’s inspection. The court has taken the opportunity to review the Grand Jury minutes.

A New York Drug Possession Lawyer said after reviewing the case and the minutes from the grand jury, the court finds that there is no basis statutory or otherwise to allow an amendment of this nature to be made. The court does not find the clear intention of the grand jury to have the defendant be charged with the crime of sexual misconduct while acting in the concert with others.

As the court is not able to detect the full intent of the grand jury in this matter, it is found that the People’s claim that this was an unintentional error is found to be false. The court further does not understand how the People claim that permitting this amendment would not change the theory of the prosecution. There is a big difference between principal liability and accessorial liability. For these reasons the motion by the People to amend is denied.

Legal matters can quickly get out of hand, especially if you do not have the right representation. Contact Stephen Bilkis & Associates to speak with one of our experienced lawyers to help you through your case, whether it involved drug possession, theft or sex crimes. We offer free consultations at each of our New York City offices. Contact us today.

November 26, 2012

Defendant Argues Complaint Insufficient to State Cause of Action

The People of the State of New York are the plaintiffs in a case against the defendant S.M. This case is being heard in front of the Criminal Court of the City of New York in Kings County. The defendant in the case has been charged with attempted sexual abuse in the second degree, attempted sexual assault in the third degree, unlawful imprisonment in the second degree, harassment in the second degree, and endangering the welfare of a child. The defendant has moved to have the charges against him dismissed.

Case Facts

The complaint in this case comes from a thirteen year old girl. The defendant is a teacher at the child’s school. On the day that the incident occurred the defendant walked the child to his home. The child wanted to leave the defendant’s home and the defendant proceeded to block the doorway and would not let her leave. The child states that the defendant asked her for a kiss and she said no. She says that he moved his face into close proximity of hers and tried to kiss her. A New York Criminal Lawyer said these actions caused the child to become alarmed and annoyed.

The complaint further states that at the time of the incident the complainant was just two months shy of her fourteenth birthday. Discovery materials in the case show that the defendant was actually the child’s substitute teacher at the time of the incident.

Defendant Argument

The defendant argues that the complaint against him is insufficient for two reasons. First, he says that according to the allegations made in the case he did not aggressively pursue the complainant and he stopped all activity when she said no. A Staten Island Criminal Lawyer said he further argues that the act of moving his face close to hers is insufficiently aggressive to constitute sexual abuse. Second, he argues that in the context of the allegations the mouth should not be considered as a sexual part of the body used to establish attempted sexual contact.

Court Discussion and Decision

The People argue that the complaint made against the defendant is a sufficient argument for the proceeding. The Court has considered each of the arguments made by the defendant separately.

First, the counsel for the defendant states that he only was asking for a kiss and that is not rise to sexual abuse. However, a New York Sex Crimes Lawyer said the court finds that this argument is flawed in that the statutes that the defendant has been charged on do not require aggressive conduct, but merely show that that the defendant attempted to make nonconsensual sexual contact.

The complaint alleges that the defendant blocked the complainant from leaving the premises. This alleged conduct is enough to constitute the argument for the alleged crimes.

Finally, in the case regarding attempted sexual abuse there does not have to be any contact between the defendant and the victim in order to be convicted of this crime. The defendant is being accused of attempted sexual assault, which is alleged in the complaint that was made.

For these reasons, the motion for dismissal by the defendant is denied. However, the defendant reserves the right to make further motions in the case in the future.

If you need legal advice regarding any type of issue, contact the law offices of Stephen Bilkis & Associates. Our offices are located in the Manhattan area. We offer free consultations to any one that visits our offices for the first time. Call and make an appointment today to speak with one of our expert attornies.

November 26, 2012

Defendant Contends Ineffective Assistance of Counsel

This is a case being heard in the Supreme Court of Bronx County. The case involves the People of the State of New York versus the defendant E.D..

Defendant’s Case

A New York Criminal Lawyer said on or about the 6th of August, 2011, the defendant filed a pro se motion to have his conviction of rape in the first degree, kidnapping in the first degree, and coercion in the first degree from 1977, vacated. The defendant argues that his rights regarding the Confrontation Clause of the Sixth Amendment of the United States Constitution were violated during his trial when the hospital record, including notations made by a resident at the hospital who did not testify, was admitted into evidence.

The defendant also states that his conviction should be vacated on the grounds that his trial counsel was ineffective as they allowed the hospital record to be introduced as evidence.

Case Background

On the 17th of November, 1975, the defendant was indicted on charges of rape, kidnapping, and coercion. The defendant was indicted along with three co-defendants all acting in concert with each other in respect to the charges.

A New York Criminal Lawyer said during the trial, Dr. Paul Fuchs testified on behalf of the People. Dr. Fuchs was the doctor who treated the young woman complainant in his office and afterwards when she was admitted to Whitestone Hospital. He testified on account of his own examinations of the complainant and to the hospital record of the complainant’s stay. He stated that the hospital record was kept in accordance to the regular course of business. Dr. Fuchs referred to the record to refresh his memory during testimony. He stated that the record contained notations made by the admitting physician of the hospital,

The trial counsel of the defendant objected to the hospital records being admitted on the grounds that any portion of the record that related to bruising, contusion, or cigarette burns should not be admitted as the trial testimony indicated these injuries were inflicted by a co-conspirator before the defendant become involved in the incident and for that reason this part of the record should not be part of the “acting in concert” charges.

The trial judge overruled the objection and the records were allowed to be submitted into evidence. He issued a limiting instruction to the jury in regard to their consideration for this part of the record.

Court Discussion and Decision

A New York Drug Possession Lawyer said the court has reviewed all of the facts relevant to this case. It was found that the defendant had appealed his conviction and did not raise the issue of hearsay objection during his case for appeal. The appeal case was reviewed in its entirety and after careful consideration including study of similar cases in the state of New York, the court denies the motion to vacate judgment on the basis that the defendant was unable to raise justifiable issues on appeal.

In regard to vacating the conviction on the grounds of ineffective assistance of counsel, it is found that the counsel of the defendant attempted to object to the evidence being submitted at the time of the trial. A New York Sex Crimes Lawyer said this motion for vacating the conviction is denied as well. The entire motion of the defendant is dismissed without a hearing.

Contact Stephen Bilkis & Associates to speak with a qualified New York City lawyer. We offer free consultations to everyone on their first visit to our offices. Our offices are located conveniently throughout New York City. You may contact us any time to set up an appointment to come in and discuss your case.

November 25, 2012

Defendant Contends Juror was Forced Into a Decision

The People of the State of New York are the respondents in this case of appeal. The appellant is J.L., who is appealing a verdict that was made by a jury in the Supreme Court of Bronx County on the 19th of March, 1984. This verdict convicted the defendant of attempted rape in the first degree and sentenced him to an indeterminate term of imprisonment of 25 years to life.

Case Background

The appeal in this case is made by the defendant as a result of a jury trial. A hearing testimony was held and took place over a period of four days. The jury commenced into deliberations at close to 12 p.m. on February 6, 1984. After deliberations and a rereading of some of the testimony of the case, the jury went to their hotel for the night at 11 p.m.

A New York Criminal Lawyer said the jury commenced deliberations at 10 a.m. the following day. At 11:45 the jurors sent a note to the court stating that they were deadlocked at a vote of 11 to 1. The one person that is holding out feels that there is not enough evidence in the case to make a decision. The note was shown to the attorneys at 2:55 p.m. The defendant’s attorney moved for a mistrial at this time. The court denied the motion and the jurors were advised by the court to continue their deliberations. The jurors sent out several additional notes to the court throughout the afternoon and evening. Three of the notes were complaining about the one hold out juror.

The counsel for the defense moved for a mistrial once again. The court recharged the jury in regard to the burglary charge and added an Allen charge. A Suffolk County Criminal Lawyer said the defendant’s attorney objected to the Allen charge as coercive and renewed their motion for a mistrial. The defense attorney claimed that the further instruction was aimed at one juror that was voting for acquittal. The motion was once again denied. The jury was sent to a hotel for another night.

At 10 a.m. the jury resumed deliberations and sent the court two notes, one at 10:21 a.m. and the other at 11:02 a.m. The notes both complained about the one juror and asked for advice on how they should proceed. For the fourth time the defense attorney moved for a mistrial and it was denied once again with the indication that this option would be entertained at 2:30.

The jurors were given a fifteen minute break outside of the jury room at 12:06 p.m. The hold out juror sent a note to the court at 2:04 p.m. stating that another juror had threatened her and came at her ready to attack. A New York Sex Crimes Lawyer said she stated that if the other jurors would not have held her back she would have hit me. She goes on to state that this is a bad action for a juror to take when one person is trying to state their opinion.

Shortly after this a verdict was reached. The court had not responded to any of the notes that were sent by the jury that day.

Court Discussion and Decision

The defendant has moved to have this verdict struck as it is felt that the juror was forced into the decision. The court agrees with this and has ruled in favor of the defendant and a new trial will be conducted in this case.

Stephen Bilkis & Associates has offices located throughout the Manhattan area. We have a team of expert lawyers who will be happy to help you with any legal issue that you may have. Contact our office to set up an appointment for a free consultation.

November 25, 2012

Appellate Court Agrees Trial Court Erred in Disallowing Expert Testimony

This is a case being heard in the Supreme Court of the State of New York in New York County. The case involves the People of the State of New York versus the defendant Q.A..

Case Background

A New York Criminal Lawyer said on the second of June in 2005 at around 3:20 in the afternoon, F. U, who was thirteen years old at the time, was on her way home from school. She was going down the well lit stairs of the subway station near the corner of Essex and Delancey Streets in Manhattan. As she was descending the stairs a man she did not know approached her and asked for some change. The man stood face to face with her and she states that she did not think he was going to hurt her. She says that she looked directly at him and told him that she didn’t have any change.

Farhana attempted to leave and the man jumped in front of her and placed a knife with a six inch curved blade near her throat and asked her to hand over her necklace. A New York Criminal Lawyer said that he was really close to her face and she was looking right at him at the time. She says she was very scared and didn’t know what to do. She refused to give him her necklace, screaming no. He then ripped the chain from her neck and fled up the stairs.

F. went to the subway station and reported the crime to a token clerk. Detective S.J. interviewed her at around 4:30 in his office in the transit station. S.J. states that she seemed scared and told him she was robbed by a stranger at knife point. She described the man as black, in his thirties; over six feet tall, had lips that were pinkish, and was wearing a blue shirt with short sleeves and a blue bandana.

The description prompted the detective to thing of suspect Quentin Abney as he was familiar with him from a similar robbery in the subway. A New York Drug Possession Lawyer said that the detective brought out six photos to Farhana and asked if she recognized any of them. She pointed out the defendant’s photo.

On the 22nd of June F. was called to the police station to view a line up. At the line up she once again identified the defendant. She stated that she was sure that the defendant was the person who robbed her in the subway. The defendant was arrested and charged with robbery in the first degree.

Before the trial the defendant filed a motion to have expert testimony regarding the reliability of eyewitness identification. This motion was denied, with leave to renew at the end of the case by the People. The defendant renewed the motion at the end of the People’s case and it was denied once again.

Appeal Case

The defendant appealed his conviction and the Appellate division of the court affirmed the conviction of the defendant. A New York Sex Crimes Lawyer said the case was then taken to the Court of Appeals where the conviction of the defendant was reversed unanimously. The reason was given that the trial court erred in not allowing the expert testimony at the end of the argument made by the People during the trial.

Court Decision

The People are appealing the order to reverse the conviction of the defendant and we agree. A new trial against the defendant is necessary.


At Stephen Bilkis & Associates we offer free consultations to anyone coming into our offices for the first time. We have a team of expert lawyers waiting to speak with you regarding your legal matters. Contact one of our New York City offices to set up an appointment today.

November 24, 2012

Court Discusses Concept of Reasonable Suspicion

In this criminal case, at the hearing, the People called two witnesses: New York Drug Enforcement Administration Special Agent Salvador Aceves, and New York City Police Department Detective John Reilly. The defense called no witnesses.

Agent Aceves testified that on April 3, 2008, he, along with his supervisor, K.B, and the members of his field team, conducted surveillance at West 225th Street and Broadway in Bronx County based on information received from an undisclosed source that a drug crime trafficking organization was planning to engage in a transaction that evening. A New York Criminal Lawyer said the agents were informed that the seller would arrive in a vehicle containing approximately ten to fifteen kilograms of cocaine and enter the Target parking lot located on West 225th Street near Broadway. With the cocaine remaining inside, the seller would give the vehicle to the purchaser, who would remove it, place the money inside, and return the vehicle.

A Bronx Drug Crime Lawyer said that, while conducting surveillance during the daylight hours of April 3, 2008, Agent A. observed individuals, who he referred to as the sellers; arrive in a black BMW, for the purpose of negotiating the transaction details he was advised would occur that evening. Agent A., however, neither identified those individuals nor provided a factual basis upon which to conclude they had engaged in negotiating the transaction.

That evening, Agent A., riding in an unmarked Jeep Cherokee driven by Agent B., arrived near the Target parking lot on West 225th Street. Upon being informed that the subjects were en route, he was advised that a silver Infinity would soon arrive followed by the black BMW he observed earlier that day. Agent A. testified that while the Infinity entered the parking lot, the BMW did not. Instead, he stated, "the black BMW stayed behind and parked directly in front of my supervisor at a bus stop on 225th Street. My supervisor (Agent B.) and I decided that we would make the arrest right then and there". Agent A. testified that his supervisor immediately activated the vehicle's lights and sirens and moved directly behind the BMW. Another vehicle from the field team moved in front of the BMW to block it in. At that moment, he observed the defendant exit the BMW from the rear door on the driver's side and move "quickly away from the vehicle." Agent B. then pursued and apprehended him. Upon frisking the defendant, Agent B. discovered a gun inside the defendant's waistband (possession of a weapon).

A Bronx Drug Crime Lawyer said that, with regard to defendant's identity, Agent A. testified that he "had no idea who Mr. P.L. was, but he was in the vehicle that was to be delivering drugs," adding that "had it not sped up, we very well could have found drugs and possibly more weapons in that vehicle". Further conceding he possessed no knowledge or information relative to the defendant, Agent A. testified that at the time they observed the defendant exit the BMW, "he had not been identified" as a participant of the drug crime trafficking organization under investigation.

A Westchester County Criminal Lawyer said the defendant is charged with criminal possession of a weapon in the second degree (PL 265.03 [3]), criminal possession of a weapon in the fourth degree (PL 265.01 [1]) and possession of ammunition (AC 10-131 [I] [3]). A Bronx Criminal lawyer said that, defendant moved, among other things, for suppression of a gun and statements made to the arresting officer on the grounds that they were obtained without probable cause in violation of N Y Const, art I, § 12, and U. S. Const, 4th Amendment, thus claiming they were fruits of an unlawful arrest.

The issue in this case is whether defendant is entitled to the suppression of the evidence, on the ground that they were fruits of an unlawful arrest.

The Court held that, initially, the People have the burden of commencing a suppression hearing by presenting evidence of probable, or reasonable, cause to show the legality of the police conduct. Once the People have met this burden, the defendant bears the responsibility of proving any illegality of the police conduct.

A New York Sex Crimes Lawyer said in sustaining their burden of establishing reasonable cause, the People must demonstrate that the attendant circumstances, coupled with defendant's behavior, justified the arresting officers' intrusion. Such intrusion, of course, must comport with the four-tier approach articulated in People v DeBour. DeBour's first level of intrusion permits a law enforcement officer to approach a citizen and request information provided there is an objective, credible, and articulable reason to do so, not necessarily indicative of criminality. The second level, the common-law right of inquiry, permits a momentary stop when there is a "founded suspicion that criminal activity is afoot". Under the third level, an officer may forcibly stop and detain a person when such officer has a reasonable suspicion that the individual has been involved in criminal activity. Finally, an officer may effect a full blown arrest when there is probable cause to believe that an individual has, is or is about to commit a crime.

i. Request for Information

At the very least, DeBour makes clear that any level-one approach must, in addition to being objective and credible, be sufficiently particular to justify a request for basic information. A person or group of people arriving in a location and coming from another location known to be a source of drugs, by itself, does not provide an objective, credible reason to ask any such person for identification. Included in a level-one approach is an officer's right to speak with the driver of a stationary vehicle for traffic related reasons. This is true even where an officer follows a vehicle or otherwise has it under surveillance, provided the driver voluntarily stops or parks the vehicle without knowledge of the police presence. Thus, an officer may certainly approach a vehicle unlawfully parked or stopped and request to see the driver's license before ordering the driver to move the vehicle.

Moreover, an officer must similarly have an articulable basis for requesting information from a vehicle's passenger. Absent additional facts specifically attributable to a passenger, such person is free to walk, even run, from a vehicle once it is stopped by the police for an alleged traffic violation.

Here, the District Attorney argues the agents approached the BMW because they had it "under surveillance and everything, their reasoning their probable cause, their approaching the vehicle to stop the vehicle was because it had pulled in and parked at a bus stop, which is illegal parking". This argument is inherently flawed because the agents did not stop the BMW, and the driver parked at a bus stop without any apparent knowledge of their presence. If the basis for their approach was indeed that the driver illegally parked at a bus stop, it would have been justified regardless of whether they had probable cause. Such a claim, however, is belied by the record.

The testimony elicited at the hearing established that Agent A. and his team were conducting surveillance of the Target parking lot located on West 225th Street near Broadway on the basis of information they received that a sale of ten to fifteen kilos of cocaine would occur.

Specifically, they were advised that the sellers would arrive in a black BMW with the cocaine inside, drive into the parking lot, and give the vehicle to the purchaser. The purchaser would then drive away, remove the cocaine, and return the BMW to the seller with the money inside. Upon observing the BMW stop and park at a bus stop, instead of entering the parking lot as anticipated, Agent Aceves testified that the decision was made to immediately approach it.

Agent A. neither stated, nor remotely inferred, that the basis upon which they decided to approach the BMW was that it was unlawfully parked at a bus stop.

Moreover, defense counsel correctly notes that the hearing record is devoid of any testimony or evidence of a posted sign establishing the area as either a bus stop or a no-standing zone. The record further lacks any testimony or evidence as to the length of time the officers observed the vehicle, whether the engine was running, whether the vehicle interfered with a bus entering or leaving the designated area, or whether anyone was observed exiting or entering the vehicle.
As noted above, an officer must also have an articulable basis for requesting information from a passenger. Accordingly, even if this court were to accept the People's argument, which it does not, in no way would it have provided an articulable basis to approach and request basic information from the defendant.

ii. Common-Law Right of Inquiry & Reasonable Suspicion

While valid traffic related issues are widely regarded as the less intrusive level-one inquiry, the common-law right to inquire focuses on the citizen as a suspect and whether there is "founded suspicion that criminal activity is afoot". Courts have described this level-two inquiry as one that closes in on a defendant as a "suspected law breaker". Although this level of intrusion entitles an officer to interfere with a citizen "to the extent necessary to gain explanatory information," it may not involve a forcible stop and seizure.

Under a level-three intrusion, however, the focus is not simply whether there is a founded suspicion of criminal activity, but whether there is reasonable suspicion that a certain individual is believed to be involved in such criminal activity. Reasonable suspicion exists when: evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was or is being committed and that such person has committed it.

Thus, before a person may be stopped in a public place, a law enforcement officer must have reasonable suspicion that such person is committing, has committed, or is about to commit a crime (CPL 140.50[1]). Reasonable suspicion is that "quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand". In other words, the officer must be able to state the specific and articulable facts reasonably prompting that intrusion; mere vague or unparticularized hunches are insufficient.
Unlike the common-law right of inquiry, a level-three intrusion is indeed a forcible stop and constitutes a seizure whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action.

Here, it is axiomatic that upon deciding to approach the BMW and "make the arrest right then and there", the agents effected a forcible stop. Agent Aceves' supervisor activated his vehicle's turret lights and sirens and moved directly behind the BMW. Another agent's vehicle moved in front of the BMW to block it in. As the defendant, a passenger, exited and moved "quickly away from the vehicle," Agent Bradley pursued, physically restrained and frisked him. Considering such factors, and weighing them in the context of these events, there is no doubt that a reasonable person under similar circumstances would have believed his freedom of movement was significantly limited.

Having unequivocally concluded that the agents' conduct constituted a seizure, the sole remaining issue is whether they possessed, at a minimum, reasonable suspicion to do so. Of course, an officer's basis for conducting an investigatory stop may emanate from personal observation or information provided by others. When such information is provided by another individual, however, it "must carry sufficient indicia of reliability to justify the forcible encounter". Thus, it is incumbent on the People to make some showing of both that person's reliability and basis of knowledge. Notwithstanding that this rule is most often applied when evaluating an application for a search warrant, it is no less relevant in assessing the propriety of a warrantless arrest and search.

The District Attorney claims Agent A. had probable cause to seize the BMW and pursue the defendant. This assertion, however, is arguably less persuasive than their claim that the agents approached the vehicle merely because it was parked at a bus stop. Other than the unattributable information from an unidentified source that a BMW containing a quantity of cocaine would enter a parking lot and be given to the purchaser, Agent A. possessed no information or suspicion concerning the defendant. In fact, Agent A. conceded that he "had no idea" who Mr. P.L. was. Indeed, nothing he observed during either surveillance session was indicative of criminal activity. Absent disclosure of the circumstances from which Agent A. concluded that criminal activities were taking place, his observations of the BMW were more than susceptible to an interpretation of innocent conduct; they were consistent with it. In fact, arguably his most significant observation was incongruous with the provided information; the BMW parked without entering the parking lot.

According to the record, the decision to approach the BMW was ostensibly based on the mere conjecture that it "very well could have" contained drugs and weapons. The failure to provide specific and articulable facts reasonably demonstrating that the defendant had committed, was committing, or was about to commit a crime, renders such speculation little more than a hunch. Clearly then, contrary to the People's claim, Agent A. did not possess the requisite reasonable suspicion, let alone the probable cause, to seize both the BMW and the defendant.

iii. Flight

Where an officer has reasonable suspicion, such officer is justified in pursuing a suspect who flees when approached. Regarding the common-law right of inquiry, the Court of Appeals enunciated a "well-settled principle: that a defendant's flight in response to an approach by the police, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, may give rise to a reasonable suspicion, the necessary predicate for police pursuit". It should be noted, however, that even with such additional suspicion, flight may be of limited value as to demonstrating consciousness of guilt, and perhaps of no value without knowledge of the circumstances underlying the motive that precipitated it.

In other words, as long as there is some indicia of criminality, flight may elevate a common-law right to reasonable suspicion. It follows then, that flight following a mere request for information not otherwise predicated on an indicia of criminality is insufficient to provide reasonable suspicion.

Here, all the defendant did was exit the BMW and move "quickly away from the vehicle." There is absolutely no testimony that he was observed making a furtive movement, grabbing his waistband, or doing anything indicative of criminality. Consequently, such flight, by itself, was entirely insufficient to provide the agents with reasonable suspicion justifying their pursuit and subsequent seizure.

Accordingly, this court finds that viewed in the light most favorable to the People, the arresting agents conducted a forcible stop of the defendant without having reasonable suspicion to do so. Consequently, the People failed to satisfy their burden of demonstrating by a preponderance of the evidence that the defendant's arrest was lawful. Defendant's motion to suppress is therefore granted in its entirety.

If you have been a victim of unlawful arrest and search, you need the advice of a Bronx Criminal Attorney in order to explain to you the consequences of unlawful arrest in criminal law. Bronx Drug Crime Attorneys at Stephen Bilkis and Associates can represent your case and make sure that the evidence unlawfully obtained against you will be suppressed.

November 24, 2012

People Move to Have Expert Testimony Precluded from Case

The case involves the People of the State of New York against the defendant A.S.. The defendant has been charged with three robberies. He allegedly robbed a Gymboree store located on Third Avenue on the 18th of April, 2001 and again on the 15th of June, 2001. He is also charged with robbing the American Airlines office located on Broadway later on the same day of June 15th, 2001.

Case Background

On the 17th of June, an eyewitness a robbery at Gymboree picked the defendant’s picture out of a photo line up. A witness of the American Airlines robbery was shown the same group of pictures, but did not make identification.

A New York Criminal Lawyer said the defendant was arrested on the 7th of July, 2001 and placed in a series of line ups on the first of August. During the line ups the same two witnesses indentified the defendant. Four other witnesses of the robberies saw the defendant in a line up, but did not identify him.

The case against the defendant is dependent on the accuracy of the eyewitnesses of the case. There is no other corroborating evidence to support the charges that have been made against him. A New York Criminal Lawyer said there are two different robberies joined in this case each separate robbery will depend on the sole witness of each.

The defendant plans on calling an expert witness, Dr. S.F., who is a clinical psychologist and a recognized expert in the area of memory and perception. Professor F. would testify about the perceptual, cognitive, and social factors including event violence, stress, cross racial impacts, and exposure time that would affect the reliability and accuracy of eyewitness identification. A New York Drug Crime Lawyer said the defendant is relying on the case of People versus Lee that held that the admissibility of this type of expert testimony lies within the discretion of the trial court.

The People have moved to have the testimony of Dr. S.F. precluded from the case.

Court Discussion and Decision

There have been many cases that are similar in this and the rulings have been varied. In this particular case, the only evidence that the plaintiff has against the defendant are the eyewitness accounts. It has already been determined that one of the eyewitnesses did not identify the defendant in the photo lineup, but did recognize him in the actual line up that the defendant was a part of.

A New York Sex Crimes Lawyer said the question is whether or not the defendant should be allowed expert testimony regarding the actual reliability of eyewitness accounts. The court finds that the expert testimony from Dr. S.F. should be allowed in this particular situation. The resume of the Doctor’s qualifications has been submitted by the defense and the witness has been involved in several other cases of this type.

The rules of inclusion as shown by other cases of this type are the main reason the court is ruling in this way. The defendant would have no defense without this testimony and this would be a violation of his basic rights. The ruling in this case is in favor of the defendant and the motion by the People to exclude the testimony of the expert witness is denied.

Stephen Bilkis & Associates offers free consultations to those in need of legal advice visiting our office for the first time. We are located throughout New York City. Contact us today to speak with an experienced lawyer in regard to your legal matter. We will be happy to help you determine the best course of action to take.

November 23, 2012

Appellant Contends Malicious Prosecution

A.R. is the appellant and respondent of this particular case. The respondent and appellant of the matter is the City of New York.

Case Background

The plaintiff, A.R. was a college student in 1984 and was studying to be a teacher. He was employed part time at the Concourse Day Care Center as a teacher’s aide. A New York Criminal Lawyer said the claim against the plaintiff was made by a five year old child that attended the day care. The child had previous records of sexually provocative behavior and had previously fabricated a claim of sexual abuse against one of her classmates while attending the Day Care Center. The mother of the child is E.H.

On the 19th of February, 1984, either the child or the mother claimed that a classmate of the child had been sexually abusing her. HRA contacted the District Attorney’s office in the Bronx under an agreement that all claims of sexual abuse at a daycare center be reported to the D.A.’s office. The investigation unit of the HRA conducted an investigation where they interviewed the teachers and administrators of the day care center and evaluated the background of the child.

The child was seen by a doctor who determined that there were no signs of sexual abuse. It was also reported that the child had a history of exposing herself in class, masturbating openly in the classroom, and acted out intercourse with dolls and described sexual acts that she claimed to have seen on television. A Nassau County Criminal Lawyer said the child denied any sexual abuse at first. At this time no further action was taken.

A short time later the mother reported that the child stated that someone named “A.” was the perpetrator of sexual abuse. The mother stated that her child told her that during nap time A. took her to the bathroom, put tape on her mouth, exposed his penis to her, put his finger in her vagina, and then tried to put his penis inside her (rape). The plaintiff was taken in for investigation at this time.

During his trial crucial evidence was left out of the reports and the plaintiff was eventually convicted of rape in the first degree. He received a sentence of 8 to 25 years. During this time he maintained that he was innocent.

The defense for the plaintiff was not given any of the information regarding the child’s precocious behaviors during class. In 1991, the plaintiff moved to have his conviction vacated on the evidence found in the seven documents that were not provided in his case. At this time the plaintiff had been in jail for seven years.

After the appropriate documents were filed and reviewed, the plaintiff was found to be innocent and the charges against him were dropped. The current case is a civil action against the City of New York asserting that a number of civil rights against the plaintiff were violated.

Court Discussion and Decision

Currently, the plaintiff is appealing a ruling from the Supreme Court that granted summary judgment in favor of the City of New York in the case for malicious prosecution. After carefully reviewing the history and arguments for this case we find that the Supreme Court erred in granting summary judgment and the order is reversed. The plaintiff will be given the right to proceed in this matter.

Stephen Bilkis & Associates is happy to discuss your legal issues with you. You may call one of our New York City offices to set up an appointment with one of our expert lawyers whether you have been charged with drug possession, theft, or sex crimes. We offer free consultations to anyone visiting our offices for the first time.

November 23, 2012

Appellant appeals Rape Conviction

The People of the State of New York are the respondents in this case. The defendant and appellant in the matter is E.M. The case is being heard in the Supreme Court, Appellate Division, First Department. The defendant is appealing an order made by the Supreme Court of Bronx County that convicted him after a jury trial of the crime of rape in the first degree and sentenced him to a lesser sentence concurrent with a conviction of rape in the first degree.

Court Records

A New York Criminal Lawyer said in review of the case it is found that the defendant offered statements to the court standing by his plea of guilty. He bargained for this plea and did not want to withdraw it. The statements made to the probation officer that were thought by the court to be a protestation of innocence were not inquired into the court in any extent. A New York Drug Possession Lawyer said the order of the court to vacate the guilty plea must be set aside in this particular case.

Court Decision

The court is ordering that the conviction of rape in the first degree is reversed and the judgment of conviction after the trial is vacated. A New York Criminal Lawyer said the court finds that the plea of guilty in the second degree satisfies the entire indictment and the plea of guilty to rape in the first degree is withdrawn. The plea of guilty that was entered on the 6th of February, 1974 is reinstated. The case will be sent to the Supreme Court of Bronx County for resentencing on the conviction of rape in the second degree through a plea of guilty.

There are many reasons that a person may find that they need a lawyer. If you need any type of legal advice, contact Stephen Bilkis & Associates. We have a full team of lawyers that are experts in every area of the law. We can help you through any issue that you may have. Contact one of our New York City offices to set up a time to meet with one of our attorneys to discuss your case. We offer free consultations to anyone that visits our offices for the first time.

November 22, 2012

Court Hears Mental Hygiene Proceeding

This is a matter being heard in the Supreme Court of the State of New York, Appellate Division, and Fourth Judicial Department. The case deals with the State of New York as the petitioner and respondent and N.W., who is also known as S.J., as the respondent and appellant.

A New York Criminal Lawyer said the respondent and appellant, S.J. is appealing a decision made in the Supreme Court of Chautauqua County that denied the motion made by the respondent/appellant to dismiss the proceeding.

Case Background

The respondent is appealing an order that previously denied his motion for dismissal of the petition of the Mental Hygiene Law article 10 proceeding. A New York Criminal Lawyer said the respondent entered a plea of guilty to reckless endangerment of the first degree and was convicted in the Supreme Court of Bronx County. Just over a week later, the respondent entered a plea of guilty for two counts of second degree rape and a count of reckless endangerment of the first degree in the Chautauqua County Court.

For the crimes listed above the respondent was sentenced to concurrent terms of imprisonment of two to six years for the convictions of rape and two to six years for the reckless endangerment conviction in the Chautauqua County Court. In addition, for the reckless endangerment conviction in the Bronx County Court the respondent was sentenced to imprisonment of two to six years to run concurrently with all of his other sentences from the Chautauqua Court. A New York Drug Possession Lawyer said all of these convictions came from a series of sexual acts with numerous women without disclosing the fact that he was HIV-positive.

A New York Drug Possession Lawyer said this proceeding was started by the petitioner approximately four days before the maximum release date for the respondent. The petition states that the respondent is a detained sex offender and requires civil management. The respondent has moved to have the petition dismissed on the grounds that he did not meet the qualifications as a detained sex offender.

To support his argument the respondent states that he was only serving time for the reckless endangerment charge, which is not covered under Article 10. The petitioner argued that the defendant was serving a sentence for a related offense as well, in this case the counts of rape and that the respondent was still in custody on the sex offenses at the time the petition was commenced.

Case Discussion and Decision

The respondent has moved to have his motion for dismissal of the petition reconsidered on the grounds that the court is required to follow the decision that the court made in the case of the State of New York versus Rashid. In that particular case the court ruled that the respondent was not subject to civil management as he had served his sentence for the sex offenses in question. Rashid was serving probation for a nonsexual offense at the time the petition was started.

In this particular case the court has determined that they are not bound by this decision as the respondent is not distinguishable and was still serving time for a sexual offense when this petition began. For this reason, a New York Sex Crimes Lawyer said the court rules in favor of the petitioners and affirms the decision that was made by the previous court to deny the motion for dismissal.

Stephen Bilkis & Associates offers free consultations to first time visitors of our offices that are in need of legal advice. Our offices are located throughout New York City. You may contact us at any time to set up an appointment to speak with an experience attorney about your legal matter.

November 22, 2012

Court Discusses Risk Assessment Factors

The People of the State of New York are the plaintiffs in this case. The defendant of the case is W.F.. The County Court of the City of New York in Madison County is the location where this case is being heard.

The defendant was convicted based on a guilty plea, to rape in the second degree, which is a class D felony. He was sentenced on the 5th of September, 2002 to an indeterminate period of 1 to 3 years. He is scheduled to be released to parole on the 25th of April, 2004. The court is being called upon to assess the risk of the defendant.

Defendant’s History

The defendant has a criminal history that dates back to 1989. This includes a conviction of sexual misconduct in 1993 when he was 20 years old, convictions of criminal contempt in 1993 and 2000 and criminal trespass in 2000. The most recent criminal case against the defendant involves a sexual relationship with the 13 year old daughter of his ex-girlfriend. The defendant was accused of having sex with the minor on numerous occasions from August through December in the year 2000. However, he only admitted to having sex with her on one occasion. He described their relationship as one of a father and daughter.

In February of 2003, the defendant received a disciplinary report while in prison for masturbating in front of a nurse.

Case Discussion

A Manhattan Criminal Lawyer said the Board of Examiners of Sex Offenders has provided the court with a summary of their discovery in this case and they have recommended that the defendant be labeled a level 3 risk of re-offense. This level is based on risk factor score of 145 points. The District Attorney agrees with this recommendation.

The defendant argues that his points should be lower as the board improperly scored a total of 40 points. He states that it was improper for him to be assessed with 20 points in factor number 4 because he had only admitted to a single instance of sex with the victim. He also objects to the 20 points issued in factor number 6 on the grounds that he was unaware that the victim suffered from a disability.

Factor number four is designed to reflect the fact that some offenders, especially ones who prey on young children, typically cannot control their compulsive behavior and continue to engage in sex with the same victim. A defendant that engages in sexual activity with the daughter of his girlfriend over a 20 week period falls into the 20 point category.

In regard to the argument for factor number 6, the factor is in regard to offenders who prey on those with physical helplessness or mental incapacity are a greater risk to public safety because their crimes are harder to detect and prosecute.

Court Decision

The Court has reviewed the risk assessment instrument that was used by the Board to come up with the risk factor score of 145. After reviewing the case it is found that the defendant has been correctly assessed by the Board. The defendant is considered to be a Risk level 3 or high risk sex offender.

If you need legal advice it is important to contact Stephen Bilkis & Associates, whether you have been charged with sex crimes, theft or drug possession. Our offices are located around the city of New York for your convenience. We have expert lawyers in every field of the law who are willing to sit down with you and discuss your case. Contact our offices today to set up a free consultation.

November 21, 2012

Court Decides Narcotics Sales Case

A New York Criminal Lawyer said that in May 1990, members of the narcotics teams arrested three men for street narcotics sales to undercover police officers. In each case, both the arrest and the evident conduct constituting the crimes was charged occurred entirely within the county and pursuant to an agreement between the district attorney and the special narcotics prosecutor, the criminal actions were commenced by the filing of felony complaints in court.

A New York Criminal Lawyer said that all the three men were arraigned and their cases adjourned for action by the special narcotics grand jury and/or possible disposition by way of waiver of indictment and the filing of superior court’s information. The counsel orally moved for dismissal of the felony complaints on the ground that the court had lacked of geographical authority as defined in law. With the concurrence of all the parties, the court reserved decision and set a schedule for the filing of written motions and memoranda of law.

While the court was waiting from the city of New York's response, the prosecutor presented the two men’s matters to a special narcotics grand jury. A true bill was voted with respect to each and the charges were filed. A New York Drug Possession Lawyer said the indictments are currently pending in other special narcotics Supreme Court parts. One of the men has actually entered a guilty plea to a lesser included offense. Consequently, the city of New York moved to dismiss the charges against the other men because the laboratory report showed that the items sold contained no controlled substance. Apparently, the motion was granted by the court.
Contrary to the city of New York's allegations, all felony complaints charging a penal law offense which are filed and arraigned in court are not sent in part. Rather, only those cases which are being prosecuted by the office of the special narcotics prosecutor appear on the court’s calendar.

Based on records, at common law, there was no proposal better established than that the venue in a criminal case must be laid in the county where the offense was committed.

Furthermore, the city of New York do not allege that the agreement between the district attorney and the special narcotics prosecutor is consistent with the plan which is supposed to be adopted by the district attorneys of all the counties of New York City. In addition, the court is not aware of any such plan being on file, nor has same been made available to the court. Therefore, the court is unable to ascertain to what extent the agreement violates, or is in furtherance of, the plan. Indeed, the court is not even confident that the plan referred to in the judiciary law exists.

Based on records, there is also no hindrance to a waiver of grand jury action and prosecution by superior court information on the out of county cases specifically provides that superior court information has the same force and effect as an indictment and all procedures and provisions of law applicable to indictments are also applicable to superior court information’s, except where otherwise expressly provided. Consequently, article of the judiciary law applies to Superior Court information’s, as well as indictments. As a result, Supreme Court, as a designated special narcotics Supreme Court part, is an appropriate superior court for accepting pleas by way of superior court information, even in cases where all the conduct occurred wholly outside of the county.

Although not expressly stating so, the constitution of the state and the New York City criminal court act, by creating one city-wide court of jurisdiction, allow for felony complaints to be filed in any county of the city alleging overt criminal conduct wholly occurring in a different county of the city. Thus, the court has jurisdiction over the felony complaints and each of the three men’s motion to dismiss the felony complaint against them is denied.

When your daughter, wife or son got hurt because someone intentionally did it, whether it involves sex crimes, drug possession of theft, you can call and ask the Queens County Family Lawyer or Queens County Assault Lawyers for legal assistance. It is hard for any parent to see their love ones get hurt that’s why Stephen Bilkis and Associates are ready to help you and your family to find justice. You can also seek legal guidance from the Queens County Criminal Attorneys.

November 21, 2012

Court Decides if Military Tribunal is Considered a Court of Jurisdiction

This matter involves H.B. and L.C as the Judge of the Jefferson County Court as the respondents. The appellant in the case is J.K. as the Jefferson County District Attorney. The other case involves the respondents L.B. and L.C. as the Judge of the Jefferson County Court and J.K. as the Jefferson County District Attorney as the appellant.

The District Attorney of Jefferson County is appealing two cases. He is seeking to overturn the grant of writs of prohibition that prevent his office from prosecuting serious crimes that were committed by two solders on military property. The soldiers were off duty at the time.

The petitioner soldiers were tried and convicted by a general court martial for identical conduct that they were indicted for in Jefferson County. The issue in each of the cases is whether a military tribunal is considered a court with any jurisdiction in the United States. If a military tribunal is considered a court with jurisdiction than the double jeopardy protection laws of the state of New York would bar the successive prosecution of the issues in these cases.

Case Background

A New York Criminal Lawyer said on August of 1991, petitioner Sergeant B. was charged by the United States Army for the crime of rape, carnal knowledge, sodomy (sex crimes), and violation of the Uniform Code of Military Justice and giving alcoholic beverages to a minor. The victim of these crimes was Booth’s niece who was thirteen years old.

The incident in question took place on the 6th of July, 1991 in the Village of Carthage, New York. Booth waived his trial by military jury. A trial by military judge took place on the 12th of January, the 30th of January, and the 10th of March, 1992. Booth was convicted of indecent assault and sentenced to confinement at hard labor for two years at Fort Knox, Kentucky. He was reduced in rank and discharged from the service on a bad conduct discharge. He was ordered to forfeit his pay as well.

In December of 1991, Booth was indicted on the charge of rape in the first degree by the Jefferson County Grand Jury. Other charges in the indictment included sodomy in the first degree, sexual abuse in the first degree, and endangering the welfare of a child. These charges were related to the same conduct that he had been tried for by the military court judge.

The second case involves petitioner Bridgewater who is a former sergeant in the U.S. Army. He was indicted on murder charges by the Jefferson County Grand Jury. A Long Island Criminal Lawyer said a military tribunal was held in his case as well and he pled guilty to involuntary manslaughter. He was sentenced to a year in prison.

Court Discussion and Decision

Both of these cases involve heinous crimes and both the petitioners have been tried and sentenced by a military court. The charges from the Jefferson County courts have been dropped as ordered by a previous court. The District Attorney is appealing these rulings and asking for permission to go on with the indictments.

After reviewing the case, both the defendants have already been tried for their crimes. Allowing the Jefferson County Courts to prosecute them as well would be a violation of the double jeopardy protection and for this reason the court denies the motion by the District Attorney.

If you need legal advice regarding drug possession, sex crimes or theft, contact Stephen Bilkis & Associates. We are happy to discuss your case with you during a free consultation. Call one of our New York City offices to set up an appointment today.

November 20, 2012

Court Discusses 5th Amendment Double Jeopardy Issue

On the morning of December 15, 1971 two men and a woman were observed entering the New York residence of the husband and his wife carrying empty shopping bags or, in Grant's case, with a collapse valise. A New York Criminal Lawyer said when they departed, the three left with their once empty receptacles, filled. They were then followed to different distribution points where they were arrested. Searches conducted incident to the arrests revealed that they each had over one pound of heroin possession (drug possession). A subsequent search of the couple’s residence produced large amounts of narcotics, money, weapons and drug packaging materials.

On December 28, 1971 the three were indicted by the Bronx County Grand Jury which, by five indictments, charged the three and the wife with criminal law violation through crack possession. The indictments also charged one of the three complainants with two counts of attempted murder, two counts of reckless endangerment and possession of a weapon; and the complainant couple with two counts each of possession of weapon and criminally using drug paraphernalia.

Thereafter, in November, 1972 the complainants and 14 others were indicted by a Federal Grand Jury for conspiring to distribute and possess with the intent to distribute narcotic drugs. A Brooklyn Criminal Lawyer said the indictment set forth 18 overt acts that the complainants allegedly committed in furtherance of the conspiracy, the last of which stated that the three together with the husband did distribute and possess with intent to distribute a total of eight and one-half (8 1/2) kilograms of heroin hydrochloride, and, in addition, did obtain $70,000 income and resources from prior heroin distributions.

The Federal prosecution proceeded to trial first. The Government produced credible evidence of the complainants' guilt and, specifically, established the overt act alleging the complainants with heroin possession with the intent to distribute the same. As noted, the complainants were convicted and their appeals were unavailing.

Concluding that the State prosecution was barred, the Appellate Division granted the petition and prohibited the accused from trying the complainants pursuant to separate indictments charging each of them with the crime of heroin possession. A New York Sex Crimes Lawyer said two Justices dissented on the ground that prohibition does not lie.

A threshold question is raised concerning whether the proceeding in the nature of prohibition should be entertained. While the occasion had recently to delimit the scope of the extraordinary remedy, the proceeding fits the traditional mold of the ancient writ which, it has often been held, lies to test whether a court is acting is excess of its jurisdiction, for example, by permitting a second criminal action to be based on a prior prosecution, and cases cited therein and is thus reviewable. Indeed, the proceedings brought on similar grounds is recently entertained and reviewed.

A Fifth Amendment double jeopardy objection was raised in the court and, while it is true, as the complainants claimed, that the objection predicated thereon is groundless. Invoking the so-called dual sovereignties doctrine, the United States Supreme Court has held that a subsequent State prosecution based on the same facts and conduct underlying a prior Federal prosecution is not in violation of the double jeopardy proscription.
Prior to the advent of the Criminal Procedure Law, it was unclear whether New York recognized the dual sovereignties doctrine. True, on several occasions the State prosecution was barred based on the same conduct as a prior Federal prosecution.
However, in each such instance, the later State prosecution was for the same identical Offense as the Federal one, the rule of these cases is codified in Criminal Procedure Law. In addition, the court permitted successive in-State prosecutions for different offenses arising out of the same criminal transaction.
The Legislature, apparently dissatisfied with the Federal formulation, adopted in the Criminal Procedure Law what is generally known as the same transaction test which, in its purest form, prohibits a second prosecution to be based on the same transaction as a former one. However, aware of the pitfalls in so broad a rule, the Legislature followed, and wisely some think, the lead of Model Penal Code and engrafted six exceptions upon it.
The Criminal Procedure Law defines the term criminal transaction as a conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture. The Practice Commentary adds that the term is primarily a factual concept denoting a group of acts or an episode of conduct which gives rise to one or more offenses. An offense is primarily a legal concept, amounting to a violation of a penal provision which occurs upon the commission of a criminal act or transaction. One act or criminal transaction may give rise to several statutory violations of offenses.
While recognizing that conceptually a given conspiracy might not be readily distinguishable from the criminal act which was its objective, the District Attorney claims that the instant case is distinguishable because there is a factual distinction between the acts establishing the conspiracy and the acts establishing the possessory crime. In support of the claim, the District Attorney points to various facts which he claims militate against finding a time and circumstance nexus between the Federal crime and the State charge. However, even assuming that no time and circumstance nexus exists, the argument fails for it may not be doubted that the criminal acts and conduct of the complainants were so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture, thereby satisfying the definition of criminal transaction. Moreover, a similar claim, made by the complainants on appeal from their convictions, was rejected by the Court of Appeals, Second Circuit, which found the evidence sufficient to establish that each complainant played a well-defined role in a highly structured, disciplined and vertical integrated criminal enterprise, and that the part with which each was immediately concerned, was dependent upon the success of the whole. The complainants' acts and conduct constituted integral parts of a single criminal venture and, thus, a single drug crime transaction within the meaning of Criminal Procedure Law.
The District Attorney's second claim that the State prosecution is excepted by the criminal law may not prevail. Principally, it is asserted that the crimes of conspiring to distribute narcotics and of criminally possessing the same have substantially different elements and that the conspiracy could have been proven without showing the complainants' crack possession on December 15, thereby demonstrating, as paragraph requires, that the acts establishing the conspiracy were in the main clearly distinguishable from those establishing the possessory crime. However, as the Appellate Division noted, and appellant concedes, the same possession of the same drugs was among the acts charged and proved and for which a conviction was had. In such circumstances, there is no substance in the claim, hypothetically posited, that the Federal convictions could have been obtained without proof of possession of the drugs.
Similarly wanting in merit is the District Attorney's third contention that since conspiracy presents a greater potential threat to the public than individual offense. The argument misses the mark however the criminal law does not permit separate prosecutions where one offense is greater or lesser than another. Rather, it requires that the offenses be designed to prevent very different kinds of harm or evil. Clearly, the Federal drug conspiracy laws and the State's drug crime laws are aimed at the same evil--narcotics trafficking.
The District Attorney argues that criminal law shelters the State prosecution. It runs directly afoul of the determination and is, therefore, rejected.
The law aims to protect the community especially the youth from drug traffickers. If you are intending to pursue a drug crime related lawsuit, call the office of Stephen Bilkis and Associates’ offices all over the metropolitan area and speak with the most reliable Bronx Criminal Lawyers and Bronx Drug Attorneys.

November 20, 2012

Court Discusses Whether Constitution Rights of Inmates has been Violated

Respondent inmates brought this class action in Federal District Court challenging the constitutionality of numerous conditions of confinement and practices in the Metropolitan Correctional Center (MCC), a federally operated short-term custodial facility in New York City designed primarily to house pretrial detainees for federal criminal offense. A New York Criminal Lawyer said the District Court, on various constitutional grounds, enjoined, the practice of housing, primarily for sleeping purposes, two inmates in individual rooms originally intended for single occupancy ("double-bunking"); enforcement of the so-called "publisher-only" rule prohibiting inmates from receiving hard-cover books that are not mailed directly from publishers, book clubs, or bookstores; the prohibition against inmates' receipt of packages of food and personal items from outside the institution; the practice of body-cavity searches of inmates following contact visits with person from outside institution; and the requirement that pretrial detainees remain outside their rooms during routine inspections by MCC officials. The Court of Appeals affirmed these rulings, holding with respect to the "double-bunking" practice that the MCC had failed to make a showing of "compelling necessity" sufficient to justify such practice.

The issue in this case is whether the constitutional rights of the inmates has been violated because of the conditions of confinement and practices imposed by the MCC, a facility designed to house a pre-trial detainees who committed federal criminal offense.

The Court held that, "double-bunking" practice does not deprive pretrial detainees of their liberty without due process of law in contravention of the Fifth Amendment.

There is no source in the Constitution for the Court of Appeals' compelling-necessity standard. Neither the presumption of innocence, the Due Process Clause of the Fifth Amendment, nor a pretrial detainee's right to be free from punishment provides any basis for such standard. In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicates only the protection against deprivation of liberty without due process of law, the proper inquiry is whether those conditions or restrictions amount to punishment of the detainee. Absent a showing of an expressed intent to punish, if a particular condition or restriction is reasonably related to a legitimate non-punitive governmental objective, it does not, without more, amount to "punishment," but, conversely, if a condition or restriction is arbitrary or purposeless, a court may permissibly infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. A New York Criminal Lawyer said that in addition to ensuring the detainees' presence at trial, the effective management of the detention facility once the individual is confined is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such conditions and restrictions are intended as punishment.

Judged by the above analysis and on the record the Court held that, "double-bunking" as practiced at the MCC did not, as a matter of law, amount to punishment and hence did not violate respondents' rights under the Due Process Clause of the Fifth Amendment. While "double-bunking" may have taxed some of the equipment or particular facilities in certain of the common areas in the MCC, this does not mean that the conditions at the MCC failed to meet the standards required by the Constitution, particularly where it appears that nearly all pretrial detainees are released within 60 days.

Nor does the “publisher-only” rule, body-cavity searches, the prohibition against the receipt of packages, or the room-search rule violate any constitutional guarantees. Simply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations. A New York Drug Possession Lawyer said there must be a "mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application, and this principle applies equally to pretrial detainees and convicted prisoners. Maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees. Since problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions, prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.

The Court said that, the "publisher-only" rule does not violate the First Amendment rights of MCC inmates but is a rational response by prison officials to the obvious security problem of preventing the smuggling of contraband in books sent from outside. Moreover, such rule operates in a neutral fashion, without regard to the content of the expression, there are alternative means of obtaining reading material, and the rule's impact on pretrial detainees is limited to a maximum period of approximately 60 days. The restriction against the receipt of packages from outside the facility does not deprive pretrial detainees of their property without due process of law in contravention of the Fifth Amendment, especially in view of the obvious fact that such packages are handy devices for the smuggling of contraband.

Assuming that a pretrial detainee retains a diminished expectation of privacy after commitment to a custodial facility, the room-search rule does not violate the Fourth Amendment but simply facilitates the safe and effective performance of the searches and thus does not render the searches "unreasonable" within the meaning of that Amendment. Similarly, a New York Sex Crimes Lawyer said assuming that pretrial detainees retain some Fourth Amendment rights upon commitment to a corrections facility, the body-cavity searches do not violate that Amendment. Balancing the significant and legitimate security interests of the institution against the inmates' privacy interests, such searches can be conducted on less than probable cause and are not unreasonable.
The Court said that, none of the security restrictions and practices described above constitutes "punishment" in violation of the rights of pretrial detainees under the Due Process Clause of the Fifth Amendment. These restrictions and practices were reasonable responses by MCC officials to legitimate security concerns, and, in any event, were of only limited duration so far as the pretrial detainees were concerned.

Thus, in view of the foregoing, the Court ordered that the decision of the Court Appeals be reversed and the case be remanded to the District Court.

No person shall be deprived of his life, liberty and property without due process of law. Even criminals or inmates retain certain constitutional rights, but it does not mean that such rights are not subject to restrictions and limitations. Suffolk Criminal Attorney and/or Suffolk Order of Protection Attorneys at Stephen Bilkis and Associates can provide you legal advice as to limitations of an inmate’s constitutional rights.

November 19, 2012

Defendant Contests Immigration Issues in Relation to Sex Crimes

The case involves the People of the State of New York against the defendant Floyd F. The Criminal Court of the City of New York in Kings County is hearing this case. A New York Criminal Lawyer said the defendant has motioned to have his plea of guilty to sexual abuse in the third degree vacated. The plea was taken on the 10th of November, 1994 and he was convicted for the crime (sex crimes) on the 12th of January, 1995.

Defendant’s Argument

The defendant is requesting that the judgment against him be vacated based upon ineffective counsel and because the plea was entered without him fully understanding what it met. The defendant argues that when he entered the plea of guilty he was not informed by his attorney of the potential immigration consequences. He states that if he had known about these consequences he would have chosen to not enter the plea and would have gone to trial instead.

The defendant states that he was born in 1973 in the country of Jamaica and became a permanent citizen of the United States in 1991. He states he is married to a citizen of the United States and has three children. The defendant states that in 1997 he applied for citizenship, but was denied. It is also affirmed that in the year 2011 he consulted with an immigration attorney about renewing his application to become a United States citizen and was informed that his conviction of sexual abuse from 1994 made him inadmissible and subject to be deported.

The counsel for the defendant affirms that the defendant was arrested in August of 1994 and arraigned for charges of rape in the first degree, sexual abuse in the first degree, and endangering the welfare of a child. The counsel further affirms that he entered a plea of guilty and was sentenced to one year of probation. He completed all of the terms for his probation. The defendant’s counsel also affirms the fact that the prior counsel of the defendant was informed of his immigration status and the prior counsel did not tell the defendant of the consequences of his guilty plea.

People’s Argument

The People argue that the defendant not being informed of the potential immigration consequences of his plea does not show ineffectiveness of counsel. They state that the defendant has failed to show that prejudice resulted from the alleged failure of his previous counselor. Furthermore, a Bronx Criminal Lawyer said the People state that by entering a guilty plea he was sentenced to a year of probation as opposed to time in prison that he would have likely received if the case had went to trial.

Court Decision

The court has reviewed the arguments from both sides of this case. The defendant has not shown that the alleged failure of his previous attorney to inform him of the possible immigration consequences of his guilty plea were less than the professional norm at the time. For these reasons, the court finds that the defendant has not provided compelling legal arguments in the matter to establish that he was denied effective counsel. The motion to have his guilty plea and subsequent conviction vacated is denied.

Whenever you find yourself in need of legal advice, contact the law offices of Stephen Bilkis & Associates. Our team of lawyers will be happy to sit down with you and discuss your legal matter. We have offices located throughout the metropolitan area of Manhattan for your convenience. First time visitors of our office receive a free consultation regarding their case.

November 17, 2012

Court Discusses Search Warrant

This case is about the validity of a search warrant which authorized a search of the premises where defendant resided, and also of another residential unit distantly located. A New York Criminal Lawyer said whether the warrant itself is sufficient; and whether by collateral estoppel the infirmity of the warrant may be argued or applied to the other residence; has to be determined by the Court.

On September 10, 1985, a New York City Police officer applied by telephone to a Queens County Criminal Court Judge for a search warrant for two premises in Queens: 155-47 116th Avenue; and the second floor of a two family dwelling at 116-66 231st Street. The application was based on the information provided to the Police Officer by an unregistered and unidentified informant, who had provided information in the past. According to the informant, there were two black males who had been abducted, beaten and were near death from a ruined drug crime transaction (drug possession) at the 116th Avenue location. The informant also said to the Police Officer that he had just left the location twenty minutes earlier and that he had been in the company of three of the suspects who were going to the 231st Street location, at about 8:00 P.M., in order to cut and distribute drugs.

The judge authorized a "no-knock" search of both premises and authorized the arrest of all persons found therein, as well as the seizure of any contraband found. The search of the 116th Avenue location resulted in the arrest of seven people and the recovery of misdemeanor quantities of narcotics and several rifles. The search of the 231st Street location, which is defendant's home, resulted in the arrest of defendant and five others, and the recovery of substantial amount of narcotics, handguns, cash, and drug paraphernalia.

A Queens Criminal Lawyer said the persons arrested at the 116th Avenue location were charged with misdemeanors before the Queens County Criminal Court. They moved to controvert the search warrant issued and alleged that no probable cause existed to issue the warrant. The said Court granted the motion to controvert the warrant and suppressed all of the contraband seized. The said Court ruled that under the "totality of the circumstances" test, the undetailed hearsay information supplied by the informant was insufficient to establish probable cause for the issuance of a warrant. The information could not be corroborated and the reliability of the informant was not established by past performance or personal knowledge.

Defendant and the others arrested at the 231st Street location were indicted by a Special Narcotics Grand Jury on drug and weapon charges before the Supreme Court, New York County, for prosecution. Defendant moved to controvert the warrant and to suppress the contraband seized thereby.

The Court noted that the subject warrant was issued on the basis of the hearsay statement of the Police Officer given to the Criminal Court Judge over the telephone. It is well settled that to establish probable cause to support a warrant based on such hearsay information; the police must demonstrate: (1) that the informant had some basis for the knowledge he transmitted; and (2) that the informant was reliable.

The Court noted that the informant's description was so general and indefinite that it fails to meet that test. Nor was the informant's reliability sufficiently demonstrated. Accordingly, under the two-pronged test for probable cause established by jurisprudence, which remains controlling as a matter of this state's constitutional law, the failure to establish either the informant's "basis of knowledge" or his "reliability" would be fatal to the warrant in question. Here, there has been a failure on both issues. Moreover, the same result would obtain even if we were to apply the less stringent "totality of the circumstances" test. Under any analysis, the "totality of the circumstances" of the information conclusorily provided by the Police Officer in applying for the warrant would not provide a "substantial basis", considering the vagueness of the unverified and uncorroborated tip, for concluding that probable cause existed.

With respect to the issue as to whether the doctrine of collateral estoppel should have been applied here, the court held in the affirmative. Collateral estoppel arises from a long-recognized equitable reaction against allowing a party to relitigate issues which have already been decided against him.

The findings of fact and conclusions of law which fully detail the basis upon which the Queens Criminal Court reached its decision on the motion to controvert the search warrant, leaves no doubt that the relevant issues were decided without any reference to the parties defendant in that case. The determination as to the warrant's underlying validity was founded solely on the basis of the police testimony, just as a similar determination here would necessarily be founded, irrespective of the identity of any particular defendant arrested pursuant to that warrant. The Prosecution already had an ample opportunity to fully litigate the question of the warrant's validity, fundamental fairness and equity dictate that they be estopped from relitigating that issue in this case, which has already been decided against them.

Allow our competent New York Criminal Lawyers from Stephen Bilkis and Associates to stand by your case during this difficult time, whether you have been charged with drug possession, sex crimes or theft.. It has offices conveniently located within New York Metropolitan area, including Corona, New York.

November 12, 2012

Defendants Move for Summary Judgment

This involves a case where the Supreme Court Appellate division held that conceivability is not equivalent to foreseebility. The Court herein granted defendant’s motion for summary judgment dismissing the complaint.

A New York Criminal Lawyer said the plaintiff was a tenant in a building located at 584 Academy Street in Manhattan, owned by defendant holding company and managed by defendant development company. In the early afternoon of February 26, 2002, plaintiff entered the building through the lone entrance available to the tenants. A man whom plaintiff did not recognize entered the building immediately after her. The man walked ahead of plaintiff up a staircase, which plaintiff was using to reach her unit on the second floor. As plaintiff opened the door to her apartment, the man, who had continued up the staircase when plaintiff walked from the staircase to her unit, ran down the staircase and pushed plaintiff into the apartment. The man then sexually assaulted plaintiff at gunpoint.

Plaintiff commenced this action to recover damages for personal injuries, claiming that defendants failed to provide adequate security for the building. Specifically, a New York Criminal Lawyer said the plaintiff's theory of liability is that defendants failed to maintain a working lock on the door to the tenants' entrance, which failure allowed the assailant to gain entry to the building and assault plaintiff.

Defendants jointly moved for summary judgment dismissing the complaint on the ground that the assault was not foreseeable, arguing that, although there was drug activity in the surrounding neighborhood, there was no history of criminal activity in the building. In opposition, plaintiff submitted evidence demonstrating that, in the 4½ years prior to the assault, several incidents occurred in or near the building to which the police responded. Plaintiff also submitted the affidavit of an expert in the field of premises security who averred, among other things, that the building was in a high crime area and that the assault on plaintiff was foreseeable.

Building owners and managing agents have a common-law duty to take minimal security precautions to protect tenants from the foreseeable criminal acts of third parties A New York Drug Possession Lawyer stated the court stated "[T]here is no requirement `that the past experience relied on to establish foreseeability be of criminal activity at the exact location where plaintiff was harmed or that it be of the same type of criminal conduct to which plaintiff was subjected', or that `the operative proof must be limited to crimes actually occurring in the specific building where the attack took place' (Jacqueline S. v City of New York, supra, at 294). However, this does not mean that the criminal activity relied upon by the plaintiffs to support their claim of foreseeability need not be relevant to predicting the crime in question.... Rather, to establish foreseeability, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location"

Defendants met their initial burden of establishing their entitlement to judgment as a matter of law by making a prima facie showing that the sexual assault committed against plaintiff was not reasonably predictable. In support of their motion, defendants submitted the deposition testimony of three witnesses— plaintiff, an employee of the managing agent and the superintendent of the building. A New York Sex Crimes Lawyer said the deposition testimony of these witnesses established nothing more than that, in the words of the employee of the managing agent, there was "a lot of drug and drug crime activity" in the neighborhood. Moreover, with respect to the building itself, each witness testified that he or she was not aware of any criminal activity in the building prior to the assault committed against plaintiff.

Plaintiff's evidence was insufficient to raise a triable issue of fact with respect to whether the sexual assault was foreseeable, i.e., reasonably predictable.

The sexual assault committed against plaintiff was not reasonably predictable based on the prior criminal activity in or near the building

Without trivializing the criminal activity in and around plaintiff's building, it must be acknowledged that, with the exception of the shooting that took place on a street somewhere in the vicinity nearly three years earlier, the criminal activity plaintiff relies upon consists of low-level crimes.

To hold defendant liable for plaintiff's injury would be to stretch the concept of foreseeability beyond acceptable limits [and make defendant an insurer of plaintiff's safety]" (Williams, 247 AD2d at 52 [internal quotation marks, brackets and citation omitted]). The same holds true here. That a woman entering her apartment in New York City might be subject to a sexual assault is conceivable, but conceivability is not the equivalent of foreseeability.

Our New York Criminal Lawyers from Stephen Bilkis and Associates can fully afford you protection against unfair and unnecessary claims. It has offices conveniently situated within New York Metropolitan area, including Corona, New York.

November 11, 2012

Defendant Denied Right to Counsel

This case is about the Prosecution’s appeal from the order of the Supreme Court, Queens County, dated May 12, 1982, which granted defendant's motion to suppress certain statements since his Fourth and Fifth Amendment rights were violated by the Police Officers.

A New York Criminal Lawyer said on March 12, 1981, the defendant was arrested on charges of murder in Pemberton, New Jersey. The murder occurred on May 23, 1980 in Queens County, New York. The detectives took the defendant to the local police station in Pemberton, where he was read his Miranda rights. He was then transported to the Burlington County's prosecutor's office where he was again given his Miranda rights. Later that day, at approximately 3:00 P.M., defendant was produced before a Judge of the Superior Court of New Jersey where he waived his right to extradition and agreed to return voluntarily to New York.

Specifically, the New Jersey Judge exhaustively explained to defendant his options as well as the concept of extradition considering that he is also wanted in the City of New York for the crime of murder. The said Judge also offered to give him a lawyer if he could not afford one, in case he opts for extradition. After having been apprised of his options, Defendant unequivocally chose to go back to New York voluntarily, thereby waiving his right to extradition.

A New York Criminal Lawyer said the defendant was immediately taken back to the 112th Precinct in Queens County to be processed on the murder charge and arrived there around 7:00 P.M. He was again given his Miranda rights which he again waived. Defendant thereafter requested to speak to his father, and after doing so, made inculpatory statements with regard to a different and unrelated murder of another person. The other murder had occurred on January 6, 1981, in Queens County, and was being investigated by arresting officers.

A New York Criminal Lawyer said thereafter, Defendant moved to suppress his statements on the grounds that (1) his arrest in New Jersey was illegal and violated his Fourth Amendment rights and (2) his statements were involuntary, and violated his Fifth Amendment rights. The said motion was granted. Hence, this appeal.

It is a well settled jurisprudence that, in New York, the constitutional right to counsel not only attaches upon the formal commencement of a criminal action, through the filing of an accusatory instrument, e.g., an indictment or felony complaint, but also attaches "when there has been significant judicial activity, even though that activity precedes the formal commencement of criminal prosecution". However, it is required that these instances or activities involve "adversary judicial criminal proceedings".

A New York Criminal Lawyer said in contrast, it has been consistently held that the extradition process is not a critical stage of a criminal proceeding and the constitutional right to counsel does not attach thereat. Accordingly, the Court held that the Defendant's right to counsel did not attach during the New Jersey proceeding.

Moreover, even assuming, arguendo, that (1) the New Jersey proceeding constituted significant judicial activity prior to the formal commencement of a criminal action, and (2) defendant's constitutional right to counsel did attach, the ultimate result of this appeal would not be different. A New York Drug Possession Lawyer said the Court of Appeals has recently stated that "there is a clear distinction between cases in which by reason of the commencement of formal criminal proceedings a defendant's right to counsel has 'indelibly attached' and can be waived only in the presence or with the concurrence of counsel * * * and those in which significant judicial activity prior to formal commencement of a criminal proceeding establishes a right to counsel which may be waived in the absence of counsel * * * provided only the waiver is voluntarily and intelligently made.”

The court found that the Miranda rights (including the right to counsel) were properly given and, although an attorney was not present, were voluntarily and intelligently waived by defendant. Accordingly, a New York Sex Crimes Lawyer said finding that the New Jersey proceeding constituted significant judicial activity would still not mandate suppression of defendant's statements. The Court reversed the assailed order.

Stephen Bilkis and Associates with its New York Criminal Lawyers can fully enforce your right in accordance with due process law. It has offices conveniently located within New York Metropolitan area, including Corona, New York.

November 10, 2012

Defendant Claims He was Denied Due Process

In a disciplinary case, the Supreme Judicial Court of the Commonwealth of Massachusetts vacated an order imposing a two-year suspension on K. and entered a judgment suspending K. from the practice of law for four years, retroactive to October 24, 1997. K's disciplinary proceeding in Massachusetts arose as a result of K's unlawful payment of $12,000 to a congressman for the purpose of arranging a transfer of K's uncle from one federal prison to another.

A New York Criminal Lawyer said that the Florida Bar filed a complaint against K and attached a copy of the Massachusetts judgment to the complaint. In his response to the complaint, K admitted that he had been suspended in Massachusetts and that the order attached to the Bar's complaint setting forth the facts leading to his suspension was genuine and admissible as evidence. The Bar filed a motion for summary judgment. K did not appear for the hearing on the motion. Instead, he filed a pleading entitled "Respondent's Objection to Complainant's Motion for Summary Judgment" in which K alleged that he had been denied due process in the Massachusetts proceeding. Following the hearing, the referee granted the Bar's motion.

In her report, the referee found that K. did not demonstrate that he had been denied due process in the Massachusetts disciplinary proceeding. The referee further determined that the Massachusetts adjudication of misconduct constituted conclusive proof of K's misconduct in the instant disciplinary proceedings pursuant to Rule Regulating the Florida Bar 3-4.6.

The referee recommended that K. be disbarred and that he be required to pay the Bar's costs. In reaching this conclusion, the referee found as aggravating factors Karahalis's prior disciplinary history (a 1985 private reprimand from the Supreme Judicial Court for Suffolk County, Massachusetts; a 1991 public censure from the Supreme Judicial Court for Suffolk County, Massachusetts; and a 1992 public reprimand in Florida based upon the discipline in Massachusetts, along with substantial experience in the practice of law. The referee found that the absence of a dishonest or selfish motive and a cooperative attitude during the proceedings were mitigating factors. Nevertheless, an NYC Criminal Lawyer said the referee found that the aggravating factors outweighed the mitigating factors and noted that "the amount of money involved in this case and the circumstances are egregious."

In recommending disbarment, the referee further relied on Florida Standard for Imposing Lawyer Sanctions 5.11, which provides that disbarment is appropriate when "(b) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or ... (f) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice."

Neither K. nor the Bar has challenged the validity of the order attached to the Bar's complaint, which sets forth the facts leading to K's suspension in Massachusetts. Therefore, pursuant to Rule 3-4.6, the Court finds K. guilty of the misconduct which served as the basis for the Massachusetts discipline; that is, the payment of $12,000 to a congressman for the purpose of obtaining a transfer of K.'s uncle from one federal prison to another.

K. does, however, challenge the referee's recommendation of disbarment. K. argues that a four-year suspension like that imposed by the Massachusetts court is appropriate.
The issue in this case is whether the referee erred in her recommendation that K. be disbarred, by virtue of his misconduct.

The Court in deciding the case said that in reviewing a referee's recommendation of discipline, this Court's "scope of review is somewhat broader than that afforded to findings of facts because, ultimately, it is the Court's responsibility to order an appropriate punishment." However, generally speaking this Court "will not second-guess a referee's recommended discipline as long as that discipline has a reasonable basis in existing case law." Further, when the disciplinary proceeding is premised upon an adjudication of guilt in another state, this Court is not bound by the discipline imposed by the sister state. Thus, the Court concludes that K. has not sustained his burden of demonstrating that the referee's recommendation of disbarment is inappropriate.

As to attorney misconduct involving bribery, this Court has found: Bribery, a criminal act, is a particularly noxious ethical failure under the Code of Professional Responsibility, because it not only involves a breach of the individual attorney's public trust as a member of the legal profession, but also represents an attempt by the offending lawyer to induce a third party to engage in fraudulent and corrupt practices. Such conduct strikes at the very heart of the attorney's responsibility to the public and profession. We are, therefore, not inclined to leniency in bribery matters, absent mitigating factors in the individual case.

In cases involving bribery, this Court has favored disbarment as a form of discipline. In the instant case, Karahalis committed serious misconduct in paying a United States Congressman a large sum of money for special treatment of a family member. While K. argues that the fact he was trying to help his family warrants less severe discipline, the Court does not agree. K. did not seek transfer of his uncle to another prison because his uncle's life was in danger. Rather, he paid the bribe because it was "inconvenient" for his family to visit the uncle who was incarcerated in Florida. Making life more convenient for family members is simply not adequate justification for such egregious misconduct. Our honored profession is soiled by the conduct which has brought K. to this day. If we do not act to cleanse the stain from our profession, we would depart from our oath and give the citizens of this state cause for concern.

Accordingly, the Court held that K. is hereby disbarred. The disbarment shall be effective thirty days from the filing of this opinion to provide K. sufficient time to close out his practice and protect the interests of existing clients. If K. notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the disbarment effective immediately. K. shall accept no new business from the date this opinion is filed. Judgment is entered in favor of The Florida Bar, 650 Apalachee Parkway, Tallahassee, FL 32399, for costs from K. in the amount of $830.00, for which sum let execution issue.

Every lawyer must act in accordance with the Code of Professional Responsibility, for the practice of a law is a noble profession. Any lawyer who violates such code must be reprimanded. If you know a lawyer who commits bribery in the practice of law, seek the advice of a Suffolk Criminal Lawyer and/or Suffolk Order of Protection Lawyer. Stephen Bilkis and Associates can help you with that, whether you have been charged with theft, drug possession or sex crimes.

November 7, 2012

Court Discusses Jurisdiction Issue

This involves a criminal jurisdiction case where it was ruled that the courts of the United States have jurisdiction, under section 5346 of the Revised Statutes, to try a person for an assault with a dangerous weapon, committed on a vessel belonging to a citizen of the United States, when such vessel is in the Detroit river, out of the jurisdiction of any particular state, and within the territorial limits of the dominion of Canada.

In February, 1888, the defendant and others, were indicted in the district court of the United States for the eastern district of Michigan for assaulting, in August, 1887, with a dangerous weapon on board of the steamer Alaska, a vessel belonging to citizens of the United States, and then being within the admiralty jurisdiction of the United States, and not within the jurisdiction of any particular state of the United States, viz. within the territorial limits of the dominion of Canada.

The indictment contained six counts, charging the offense to have been committed in different ways, or with different intent, and was remitted to the circuit court for the sixth circuit of the eastern district of Michigan. There the defendant filed a plea to the jurisdiction of the court, alleging that it had no jurisdiction of the matters charged, as appeared on the face of the indictment, and to the plea a demurrer was filed.

A New York Criminal Lawyer said the demurrer focused on the issue on whether the courts of the United States have jurisdiction, under section 5346 of the Revised Statutes of the United States, to try a person for an assault with a dangerous weapon committed on a vessel belonging to a citizen of the United States, when such vessel is in the Detroit river, out of the jurisdiction of any particular state, and within the territorial limits of the dominion of Canada.

Section 5346 of the Revised Statutes, upon which the indictment was found, is as follows:

'Sec. 5346. Every person who, upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay, within the admiralty jurisdiction of the United States, and out of the jurisdiction of any particular state, on board any vessel belonging in whole or in part to the United States, or any citizen thereof, with a dangerous weapon, or with intent to perpetrate any felony, commits an assault on another shall be punished by a fine of not more than three thousand dollars and by imprisonment at hard labor not more than three years.'

A Staten Island Criminal Lawyer said the statute relating to the place of trial in this case is contained in section 730 of the Revised Statutes, which is as follows:

'Sec. 730. The trial of all offenses committed upon the high seas or elsewhere, out of the jurisdiction of any particular state or district, shall be in the district where the offender is found or into which he is first brought.'

It is to be observed that the term 'high,' in one of significations of high seas, is used to denote that which is common, open, and public. Thus, every road or way or navigable river which is used freely by the public is a 'high' way. So a large body of navigable water other than a river, which is of an extent beyond the measurement of one's unaided vision, and is open and unconfined, and not under the exclusive control of any one nation or people, but is the free highway of adjoining nations or people, must fall under the definition of 'high seas,' within the meaning of the statute.

The language used must be read in conjunction with that term, and as referring to navigable waters out of the jurisdiction of any particular state, but connecting with the high seas mentioned. The Detroit river, upon which was the steamer Alaska at the time the assault was committed, connects the waters of Lake Huron (with which, as stated above, the waters of Lake Superior and Lake Michigan join) with the waters of Lake Erie, and separates the dominion of Canada from the United States, constituting the boundary between them; the dividing line running nearly midway between its banks, as established by commissioners, pursuant to the treaty between the two countries.

According to the court, in traversing the river, they are constantly passing from the territorial jurisdiction of the one nation to that of the other. All of them, however, so far as transactions had on board are concerned, are deemed to be within the country of their owners. Constructively, they constitute a part of the territory of the nation to which the owners belong. While they are on the navigable waters of the river, they are within the admiralty jurisdiction of that country. This jurisdiction is not changed by the fact that each of the neighboring nations may in some cases assert its own authority over persons on such vessels, in relation to acts committed by them within its territorial limits. In what cases jurisdiction by each country will be thus asserted, and to what extent, it is not necessary to inquire, for no question on that point is presented for our consideration. The general rule is that the country to which the vessel belongs will exercise jurisdiction over all matters affecting the vessel, or those belonging to her, without interference of the local government, unless they involve its peace, dignity, or tranquility, in which case it may assert its authority.

Stephen Bilkis and Associates with its New York Criminal Lawyers can assert your right guaranteed by law. If you have been charged with theft, drug possession or sex crimes, call us. We have offices located within New York Metropolitan area for your convenience.

November 7, 2012

Court Finds No Probable Cause for Search

On January 20, 1984, two police officers were on patrol in a marked police car, when they observed a white, 2-door Pontiac stopped or standing adjacent to a fire hydrant, at the intersection in the Bronx. The police officer who had been operating the patrol car stopped and requested the woman to move the auto from the hydrant, whereupon she stated that she did not have a license and that it was not her car. The officer maneuvered the patrol car so that its headlights faced the front of the Pontiac and both officers exited their vehicle carrying flashlights, with the patrol car driver proceeding to the passenger side and his fellow officer to the driver's door.

A New York Criminal Lawyer said one of the officers asked the woman to produce her operator's license, registration and insurance certificate. She responded that she did not have a license but the registration was produced from the glove compartment, although the record does not reflect whether it was retrieved by the car owner or by the woman. In any event, after the woman was unable to state the name of the owner in response to the officer's inquiry, the police officer, who was shining a flashlight into the car, noticed a closed, brown paper bag, resting against the seat, between the car owner and the woman. He inquired as to the contents of the bag, whereupon the woman picked up the bag, handed it out the window and stated that it's only boxes of envelopes. According to the police officer, she became confused at that point, and didn't understand him. She complied with the command and handed the bag out the window. The other officer, who was positioned on the sidewalk behind the passenger door, only heard highlights of what had transpired between his fellow officer and the woman.

The officer took the bag and placed it on the roof of the car. He then shook it and heard a metallic sound. Contrary to the fact-finding analysis, the police officer did not testify that he believed the bag to contain a hidden weapon or an object heavy enough to be a weapon. Without any further inquiry, he opened the bag to examine the contents and discovered two tan stationery-type boxes. When he opened the first, he found hundreds of glassine envelopes and yelled to his fellow officer to watch out because he got something. Although the officer did not examine the contents, he saw that it contained what appeared to be glassine envelopes and believed that they had powder in them. Actually, the envelopes had no powder and were empty.

A New York Criminal Lawyer said in any event, according to the officer, he heard his fellow officer tell him to look out because the two are going. According to the police officer, it meant that the occupants of the car were to be arrested for drug possession.

After examining the bag's contents, the officer directed the woman to exit the car while he proceeded to search the car owner. As far as the officer was concerned, at that moment, both had been arrested and he was going to make sure that they did not have any weapons. He directed the car owner to place his hands on the dashboard and patted him down upon noticing that the car owner had only one hand. In the car owner's left jacket pocket he found what appeared to be a tin foil, which he felt through the material. It was soft, about an inch and a quarter wide and a half inch thick. Examination of the foil disclosed that it contained two other tin foils, containing a white powder, later discovered to be cocaine. The two occupants were handcuffed and taken to the precinct for a further check to ascertain whether the vehicle had been stolen. During the ride to the stationhouse, the car owner told the officer that if anything was wrong, he would take the heat for the car. A New York Drug Possession Lawyer said a subsequent search of the woman at the precinct revealed her to be in marijuana possession but the record is unclear as to whether any formal charges were filed against her or whether she was prosecuted for crack possession. However, she was issued summonses for being an unlicensed operator (Vehicle and Traffic Law) and for parking next to a fire hydrant (Traffic Regulations of the City of New York).

The car owner, charged with marijuana possession, moved to suppress the physical evidence seized at the time of his arrest. Following a hearing, the suppression court granted the motion, concluding that the seizure of the paper bag, on the front seat of the car, amounted to a warrantless, non-consensual search, in violation of the car owner's Fourth Amendment rights. In so finding, the court cited the conflict in the proof as to whether the officers had requested or demanded that the bag be handed over to them and held that the City of New York had not satisfied their burden of showing that the search was voluntarily consented to. Observing that the occupants were young and without experience in dealing with the police, it was concluded that they may have felt that they were not at liberty to challenge the authority of the officers, who had approached the vehicle on both sides, shining flashlights into the car. The court also found that no probable cause existed to search the paper bag. It held that, although the inability of the female occupant to produce a driver's license and her unfamiliarity with the name of the owner of the vehicle may have permitted further inquiry, the officers did not have the right to seize and search the occupants at that time.

The officers were justified in approaching to request information since the vehicle was stopped or standing at a fire hydrant, concededly a traffic infraction. The responses furnished by the woman, that she did not have a license and did not know who the owner was, clearly served to heighten the suspicions of the officer. While the circumstances justified the initial stop and the inquiry, there was nothing to render permissible any greater level of intrusion. There were no furtive movements indicating that either occupant was secreting anything. The officers noticed no bulges in their clothing nor was there anything to suggest that there were weapons inside the car. To the extent that the other officer was at all apprehensive, this was alleviated when he took possession of the bag. As noted, the suppression court did not credit the officer's tailored testimony that he feared for his safety. In any event, he acted prematurely and without justification in examining the contents of the bag without conducting any further inquiry of the occupants.

While the facts disclosed in the record support the existence of a right to inquire, there was no probable cause to search the bag. Mere hunch or suspicion on the part of the officer is insufficient for that purpose. While it is argued that the search may be sustained on the basis of the fact that the encounter took place in a high crime, drug-infested neighborhood, a similar claim could be advanced as to countless other communities in our City where there are diverse criminal elements and activities. The existence of crime on our streets, however, does not alone furnish a basis to disregard fundamental constitutional rights and liberties.

However, even if the officer was justified in examining the contents of the bag, it is conceded that it contained empty glassine envelopes, the possession of which is susceptible to a variety of innocent interpretations and is not necessarily indicative of criminal activity. The officer admitted on cross-examination that such envelopes could be used for several lawful purposes, namely, stamp and coin collecting. Where, as here, behavior is equivocal and susceptible to an innocent explanation, it may not furnish probable cause for a warrantless search.

Accordingly, the order which granted the car owner's motion to suppress should be affirmed.
Selling of drugs is punished more severely than drug use in our society. Some people use drugs to alleviate pain from their sickness while others use drugs to harm their mind and body. Whether you have been charged with drug possession, theft or sex crimes, contact Stephen Bilkis and Associates for guidance and a free consultation.

November 6, 2012

Court Discusses Crime of Barbituate Possession

At about 6:30 p.m., a 15 year old boy violated the criminal law. The boy was in unlawful barbiturates possession (Drug Possession) that can only be obtained by a doctor's prescription. The boy, prior to his arrest, has been observed by the witness being approached by another youth who placed a dollar bill upon a mail box and in return received something from the boy. The object is being taken from the boy’s right pants pocket where the two bottles of barbiturates was found.

There was only one witness who testified at the fact finding trial. The police officer testified that at that day from a distance of about 30 feet, he observed the boy approach a youth at a mail box on a public street in daylight, take a bill of currency placed on top of the mail box, pass an unseen object in his closed hand to the youth and then he followed the boy as he shuffled unsteadily, evidently intoxicated by alcohol or a drug, for about two blocks until he turned through the doorway of a grocery store. A New York Criminal Lawyer said the police officer thereupon spoke to the boy in the store. He observed that the shuffling boy appeared to be dazed or drugged, with half-closed eyes. The police officers ask the boy to identify himself and requested to be search. The boy cooperated without objection. Upon tapping his clothes in the well-known manner, the police officer noticed hard objects in the boy’s pocket. He then asked the boy to empty his pockets. Still cooperating without objection, the boy produced two unlabeled brown bottles containing dozens of pills and nine one dollar bills. The boy confessed on the spot, as the police officer testified, that the many white pills were barbiturates and he had sold the pills. He stated that he could not remember or did not know the name of the man from whom he had obtained the pills, a strange man in a park. Quite importantly, the boy further admitted that he had been himself taking those pills for about one and one-half months and his obvious doped condition was the result of it. The pills were now in evidence.

The court was tempted to defer the proceeding, after which no chemical analysis was yet available for the purpose of obtaining the analysis from the police department laboratory. In addition, a New York Criminal Lawyer said because of the failure to analyze the pills received in evidence as found in the possession of the boy, there are lengthy observations and findings which the court required to make. The opinion of the court may shed on the juvenile drug crime problem and simplify the evidence and procedures in similar cases.

Consequently, the law guardian advised the boy of his right to remain silent as there were no other witnesses available for the trial. A New York Sex Crimes Lawyer said while only one witness testified, his testimony and the many pills received in evidence meet all of the legal standards for a fact finding on a hold of the evidence that the boy did the act or acts alleged in the petition.

Based on records, barbiturates possession is prohibited as a violation of the penal law. Further, barbiturates possession, sale, exchange or giving away of barbiturate drugs or preparations by other than registered manufacturers, manufacturer's depots, wholesalers, pharmacists, practitioners of medicine, dentistry, podiatry or veterinary medicine and the possession by other than persons who obtain barbiturates on the prescription of a duly licensed practitioner, provided such barbiturates are in the pharmacists' original or renewed prescription container or practitioner's dispensing container which containers shall bear a label meeting all the label requirements of the laws relating to the labeling of barbiturates, shall constitute a violation of the penal law.

Moreover, the term drugs was defined as intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals. It is also intended to affect the structure or any function of the body of man or other animals.
The highly sedative effect of the pills on the boy, in the form of his dazed condition, was proved by the eyewitness testimony coupled with the boy's admission. The court then found that the drugs affects the functions of the boy’s body were the same as specified above in the meaning of the term drugs.
Consequently, the issue is not necessarily what kind of barbituric acid constituted the barbiturates involved, although the proof supported the allegations is already modified. The ultimate fact is whether the boy was unlawfully in possession of, selling, and/or distributing a drug within the meaning of the regulation. The violation of the city health code and the penal law cited was sufficiently proved but since the judicial notice taken was without advance notice to the boy some of the facts noticed are not unquestionable. The boy by the law guardian is advised again, as he was advised at the hearing, that a motion to reopen the fact finding trial will be granted if the boy’s proof is ready at the next hearing scheduled.
Based on records, the regulation of the city health code indicates no person shall sell or offer for sale any drug or device from door to door, or in any public street, highway or park. Moreover, no person shall distribute free of charge or throw away any drug or device in any public street, highway, park or other public place, or from door to door, or by leaving it upon private premises. The subsection shall not apply to the distribution of sample drugs or devices by manufacturers or wholesale dealers to practitioners or to the drug trade. Such samples, however, in addition to other labeling required pursuant with the article shall clearly bear on the label the words of sample and not for sale. No person shall sell or offer for sale any such sample.
At the next dispositional proceeding, there will be further evidence in the form of probation and medical reports of the 15 years old boy's condition, as well as evidence of the barbiturates manufacturer's warnings as to dangers to susceptible persons, particularly psychoneurotics, addicts, or alcoholics, dangers of side effects, cases of dependence and withdrawal reactions, and dangers of lethal effect similar to barbiturate poisoning due to gross over dosage.
Consequently, in view of the erroneous description of the pill in the petition as a barbiturate, the petition is modified to describe the pill as a non-barbiturate drug, with the same leave to the boy to counter by any defense evidence that is relevant and competent in a reopened trial, if the he so desires and if he is surprised by the said modifications.
At the end of the trial, the court denied the motion to suppress the pills and other evidence found on the 15 years old boy by the petitioning peace officer. The motion was made on the ground that there was an illegal arrest and therefore an unreasonable search and seizure.
The court denied the motion for the reason that the police officer does not have the superior status of a peace officer who is also a police officer who can lawfully arrest and consequently frisk or otherwise search, and seize, objects from the person of arrested persons.
Parents nowadays are more cautious about the lifestyle and the activity of their children but there are still chances that even how careful they are, young individuals still engaged with crimes or drug related problems. If your child has the same dilemma and you want to provide for his actions, the Bronx Criminal Lawyer can be your child’s legal representative. However, if you need assistance from Bronx Drug Attorney, you can immediately reach them at Stephen Bilkis and Associates office.

November 5, 2012

Court Finds Evidence Submitted in Error

This case is taking place in the Appellate Division of the Supreme Court of New York, Second Department. The appellant in the matter is the People of the State of New York. The respondent in the case is F.W. The defendant is appealing a judgment made by the County Court of Suffolk County that convicted him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled sentence in the third degree.

A New York Criminal Lawyer said the issue being argued on appeal is whether admission of evidence that the defendant, who was on trial for a single sale of cocaine, sold drugs to the same buyer on more than one occasion was an error in the case that requires a new trial in the matter.

Case Background

On the 20th of April, 2007, the defendant was at a bar located in Westhampton Beach. At this time there was an undercover cop at the bar as well. The undercover police officer saw the defendant hand another person a clear plastic bag that was knotted and containing a white substance. A New York Criminal Lawyer said the defendant and the other individual left the bar separately.

Believing that a drug sale had taken place, the police stopped the buyers truck and recovered a knotted clear plastic bag with a white substance that proved to be cocaine. The buyer then inculpated the defendant and the defendant was arrested two hours later.

When the defendant was arrested he was not in possession of any drugs. He was charged with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.

The buyer was also charged in regard to possession of cocaine, but agreed to be a witness for the prosecution in return for his case being dismissed.

Before the trial the prosecutor applied for permission to submit testimony from the buyer that stated that he had purchased narcotics from the defendant on more than one occasion. The prosecutor argued that the evidence was admissible because it was probative for the question of identifying the defendant as the person who sold them the drugs.

The defense counsel argued that the defendant would not claim misidentification and only that he did not sell drugs to the buyer on that particular evening. The County Court denied the application of the prosecutor on the basis that the evidence of prior sales would be more prejudice than probative. A New York Drug Possession Lawyer said the parties were advised that the proof of the uncharged sales might be admissible in a rebuttal depending on the evidence that was submitted in the case.

During the trial the prosecutor renewed his application to introduce evidence of prior drug sales arguing that the defense had opened the door to several defenses including mistaken identity. The court granted the prosecutor the application and allowed the testimony of previous sales to be submitted.

Decision of the Court

The court has reviewed the facts of the case and finds that allowing this evidence to be submitted was in fact an error. A new trial is ordered in this case.

If you are in need of legal advice, contact the law offices of Stephen Bilkis & Associates. We have several offices located in the area of New York City. You may call and set up an appointment to meet with one of our expert litigators in regard to your legal matter, whether you have been charged with theft, sex crimes or drug possession. Everyone visiting our offices for the first time receives a free consultation.

November 3, 2012

Appellant Claims Due Process Right Violated

The defendant in this case, R.C., is appealing a judgment made by the Supreme Court of Suffolk County. The judgment convicted the appellant of criminal sale of a controlled substance in the third degree. A New York Criminal Lawyer said the appeal brings up issues of denial of the defendant’s omnibus motion that was to dismiss the indictment and to suppress identification testimony. This case is being heard in the Supreme Court, Appellate Division, Second Department.

Case Background

In June of 1984, in response to numerous complaints made by residents in the Wyandanch, Long Island, area that the community was becoming an open drug market, an undercover operation was conducted by the Suffolk County Police.

An undercover police officer was sent to the area and during the investigation made numerous purchases of illegal drugs with the help of several confidential informants. A New York Criminal Lawyer said the operation ended in January of 1985 and seventeen arrests were made. One of these arrests was the defendant Richard Connor, who was a New York City Department of Corrections Officer assigned to C-95 on Rikers Island. On the third of June in 1984, the defendant sold 425 worth of cocaine to an undercover agent outside of a bar located in Wyandanch. This transaction took place in front of a confidential informant.

After the defendant was arrested he moved to have the case against him dismissed on the ground that a seven month delay between the time the crime occurred and his arrest deprived him of his constitutional right to due process of the law. He claimed that he had been prejudiced in his ability to defend himself due to the fact that his memory of the night in question had faded. Additionally, the defendant claimed that the bar where the transaction took place had closed, which made it difficult for him to find any other potential witnesses.

A hearing was granted and during the hearing the officer testified that it was necessary to delay the arrest until the entire investigation was completed because in a small town like Wyandanch, it was extremely likely that the dealers and informants would be known to each other and arresting anyone would risk the operation and potentially endanger the lives of the informants.

Court Discussion and Decision

The conclusion made by the hearing court was that the seven month delay between the incident and the arrest was necessary and not an unreasonable amount of time. A New York Drug Possession Lawyer said the delay was not taken for any improper purpose, but rather in good faith in regard to the investigation. There was no demonstrated prejudice against the defendant and in fact both the defendant and the witnesses were able to testify in detail about their activities on the date in question.

The motion to have the in court identification by the undercover police officer suppressed was also properly denied.

After reviewing the case it is ordered that the judgment be affirmed. The appeal by the defendant is denied and the case will be remitted to the Supreme Court of Suffolk County for further proceedings.

Stephen Bilkis & Associates can help you in any type of legal matter that you are facing. We have lawyers who are experienced in every facet of the law, whether you have been charged with drug possession, sex crimes or theft. Our offices are located conveniently throughout the city of New York. We offer free consultations to anyone visiting one of our offices for the first time. If you need legal advice, contact us today.

November 1, 2012

Plaintiffs Sue Author for Publishing Defamatory Matter

This case involves the respondent D.R. and the appellants. The case is being heard in the Court of Appeals of New York. The action is for defamation as the plaintiff is a Justice of the Supreme Court in the Second Judicial District. He alleges that he was libeled in the book “Cruel and Unusual Justice” that was authored by the defendants. The defendants motioned for summary judgment in the case after extensive pretrial discovery. The motion was denied by Special Term. The Appellate Division affirmed this decision in a closely divided court. The defendants were granted leave to appeal to our court on a certified question.

Court Discussion

A New York Criminal Lawyer said the question before the court is whether the plaintiff has established the existence of material facts that are sufficient to create a triable issue for his libel cause of action.

The author of the book, J.N., is a well-known, controversial, investigative journalist. In 1972, the author focused his attention on the criminal justice system in the State of New York. He emphasizes the administration of the criminal justice system in New York City. During the fall of 1972 he published five articles in the Village Voice on the judicial conduct of the city. A New York Criminal Lawyer said one additional article titled “The Ten Worst Judges in New York” was published in New York magazine. These articles focused on how the judges in the New York City courts were chosen for political reasons and not on the merit of their qualifications for the position. Several judges were identified by name and were described as being corrupt or incompetent. The author cited several decisions made by these judges to support his criticism.

The respondent, J.R. was one of the four judges that were accused by the Joint Legislative Committee for the crime of handing down “wrist-slap” sentences in felony narcotics cases. During the time that the articles from the defendant were appearing, the New York Times issued an article stating that Judge Rinaldi had sentenced and organized crime figure that had been charged with bribing a police officer, with a fine of $250. A New York Drug Possession Lawyer said on the same day the Judge issued a sentence of imprisonment of up to five years to a 19 year old that allegedly robbed a drugstore.

In this case, the plaintiff alleges that the defendants maliciously published false, scandalous, and defamatory matter stating that the plaintiff was and is a corrupt, biased, and incompetent judge that should be removed from office. The plaintiff alleges that as a result of the book his name and reputation have been damaged and he has been held in public scorn, ridicule, and contempt. He seeks $5,000,000 in damages.

Court Decision

This case brings up a delicate and difficult dilemma and this court is committed to a strong and free press, especially in the area of political debate. In this particular matter, the plaintiff was already involved in a scandal that was making headlines prior to the book being published. It is found that the book did not inflict any more harm on the reputation of the judge.

The judge has failed to show triable issues of fact in the matter and for this reason the court will grant the motion for summary judgment in favor of the defendants and the case is dismissed.

Stephen Bilkis & Associates offers free consultations to those visiting our offices for the first time in need of legal advice, whether you have been charged with theft, drug possession or sex crimes. You may contact one of our offices located in New York City to speak with one of our expert lawyers regarding your legal matter at any time.

October 31, 2012

Court Decides Possible Acquittal by Reason of Mental Disease

This case involves a matter of a recommitment proceeding in relation to Criminal Procedure Law in relationship to the respondent Francis S. The petitioners and appellants in this case are the District Attorney of New York County and the Commissioner for the New York State Office of Mental Health.

A New York Criminal Lawyer said the main issue before the court is whether an acquittal by reason of mental disease or defect of a person who has repeatedly violated the order of conditions that he gained upon release and who is still mentally ill, a poly substance abuser, given to acts of violence and still found to be not suffering from a dangerous mental disorder is appropriate.

Case Background

There have been numerous hearings regarding the defendant Francis S. The Supreme Court found the respondent to be mentally ill, suffering from alcoholic dependence and poly substance abuse. A New York Criminal Lawyer said they also found that the has an antisocial personality disorder, a narcissistic personality order, attention deficit hyperactivity disorder, is a master at manipulation, and uses the criminal justice system to work in his benefit.

The Supreme Court also found that he is likely to get in trouble again upon his release from the hospital because he refuses to take any type of medication and will not attend any Alcoholic Anonymous meetings and simply cannot control himself to refrain from escalating incidents that have led to numerous arrests.

However, the court felt constrained to release Francis S. and not grant an application of recommitment upon the authority of the Matter of Torres. A New York Drug Possession Lawyer said the court was forced to do this because at the time of the hearing the defendant although suffering from a dangerous mental disorder, but was on medications and separated from poly substance abuse. Even though the reason for this improved condition was the fact that he had been hospitalized for over six months.

The recommitment hearing had its beginning from an incident with the defendant that occurred in 1983. At that time the defendant was at the scene of a drug raid. He was there to buy marijuana. A police officer ordered him to leave the scene and he refuses. He was arrested for disorderly conduct. When he was being placed under arrest he pulled out a six inch hunting knife and tried to stab the officer. He was charged with attempted assault, criminal possession of a weapon, as well as the disorderly conduct charge. He was released on his own awareness and then engaged in numerous criminal acts in New Jersey. He was placed in the Greystone Psychiatric Center and during his confinement reported seeing and hearing things. He claimed that he spoke to God and was God, among other hallucinations. He was diagnosed as a schizophrenic based on observations at the hospital.

Court Discussion and Decision

In this particular case, we find that the previous court’s reliance on the Matter of Torres was misplaced. The appellants had established enough evidence in regard to the defendant to show that he had a dangerous mental disorder at the time of his hearing and the petition for recommitment should have been granted.

There are many reasons a person may need a lawyer. If you find yourself in this situation, contact Stephen Bilkis & Associates. Our offices are located throughout the metropolitan area of Manhattan for your convenience. You may call us at any time to set up an appointment to meet with one of our qualified lawyers, whether you have been charged with theft, drug possession or sex crimes. We offer a free consultation on your first visit to our offices.

October 30, 2012

Court Determines Defendant is Entitled to Habeaus Corpus Relief

The petitioner was a Florida prisoner on death row, having been convicted of first degree murder. The district court granted a writ of habeas corpus setting aside his conviction and sentence. The United States Court of Appeals reversed the decision of district court. A New York Criminal Lawyer said the issues involved are whether or not the petitioner received ineffective assistance of counsel and that the State violated the Brady rule.

An illicit love affair ensued between a man, a real estate broker with ties to Boston’s criminal underworld, and a woman, who was married to a wealthy citrus grower. A New York Drug Crime Lawyer said the man and the woman conspired to kill the wealthy husband by hiring petitioner as an assassin to murder husband. Unfortunately, the murder did not signal the beginning of a blissful life on the estate for the lovers. The man allegedly wanted more money and continue to harass the woman and her child. Terrified, the woman went to the authorities and implicated the man as the person behind her husband’s murder.

During the trial, the man discredited the woman as prosecution’s star witness. Trial proceedings were tainted with evidentiary irregularity leading to the unavailability of key witnesses. The man was discharged from prosecution in the crime of murder. The court then granted the petition to destroy certain physical evidence held for man’s prosecution.

Several years later, the man faced charges for prostitution, narcotics distribution, arson, bribery, counterfeiting and hijacking, among other things. In exchange for immunity, the man volunteered to give information he had on the murder of the wealthy citrus grower. A Nassau County Drug Possession Lawyer said the statement of this man lead to the arrest of petitioner assassin who was convicted by the jury founding him guilty of first degree murder. The court sentenced the petitioner assassin to death.

Petitioner appealed his conviction and demanded for an evidentiary hearing. The district court decided to hold an evidentiary hearing before it. The district court concluded that petitioner assassin was entitled to habeas corpus relief because his trial counsel was ineffective. In the court's view, petitioner’s lawyer, who was responsible for pretrial investigation, was incompetent, and his primary defense counsel did not know that the other counsel had failed them.

Upon review, the Court of Appeals ruled that the district court abused its discretion in holding evidentiary hearing. Accordingly, first, the court failed to determine the appropriate legal standard for measuring its discretion to grant the hearing. Second, despite the State's continuous objections to the hearing, the court failed to acknowledge and apply any legal constraint on its discretion at all.

The Court explained, that allowing a habeas petitioner to allege a single instance of ineffective assistance in his state post-conviction proceedings and then proceed to federal court to allege additional instances would be contrary to the state's "full and fair opportunity to address the claim on the merits." The state would never have the benefit of evaluating the claim using a fully developed set of facts. This would not be the "serious and meaningful" exhaustion of claims that Congress intended.

Without question, the Florida courts will no longer entertain on the merits of the claims petitioner has asserted for the first time in the instant petition. See, e.g., Aldridge v. State, 503 So.2d 1257, 1258 (Fla.1987) (holding that a state prisoner is procedurally barred from raising on a second motion for postconviction relief "somewhat different facts to support his ineffective-assistance-of-counsel claim"). A Queens Drug Possession Lawyer said clearly, petitioner could demonstrate no cause for not having raised the lawyer-related instance of ineffective assistance of counsel in the Rule 3.850 proceeding. There was no conceivable impediment to raising it.

The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). As the Supreme Court later clarified, there are three components of a true Brady violation: (1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. Whether or not the items the district court identified should have been disclosed to defense counsel, their effect taken individually and cumulatively could not have been legally significant to the outcome of petitioner's trial. Defense counsel effectively capitalized — in one way or another — on every potentially valuable argument the five items support, even though the items themselves were unavailable to counsel at the time of trial. It follows in this instance that the pretrial disclosure of the items would not have created a "reasonable probability that ... the result of the proceeding would have been different." Thus, although the State ultimately prevailed in a factually challenging case, petitioner's due process rights were not offended.

Stephen Bilkis and Associates with its competent New York Criminal Lawyers can argue your case to afford you a fair trial. It has offices located within New York Metropolitan area, including Corona, New York.

October 30, 2012

Court Rules on Probation Violation

The People of the State of New York are the respondents of this case. S.H. is the appellant. The case is being heard in the Appellate Division of the Supreme Court of the State of New York, Second Department. The defendant is appealing an amended judgment from the County Court of Suffolk County that revoked a sentence of probation that had been previously imposed by the same court.

Case Background

A New York Criminal Lawyer said the defendant pleaded guilty to a charge of burglary in the third degree on the 12th of March, 2003. He was sentenced by the County Court to a term of six months in the Suffolk County Correctional Facility. This was to be followed by five years of probation. There were terms set for his probation that included that he report as directed to his probation officer, submit to drug testing, and make reparations in the amount of $1000 plus a 5% surcharge to be paid to the Probation Department of Suffolk County.

On the 29th of March, the County Court held a hearing regarding the allegations that the defendant had violated certain conditions of his probation. At the end of the hearing the County Court found that the defendant was in violation of his probation as he had failed to report to his probation officer on 10 different occasions, did not complete a drug treatment program, and did not pay the required restitution. It was also found that he was using controlled substances.

For the violations of his probation, the County Court revoked his probation sentence and imposed a sentence of imprisonment for the previous conviction of the defendant for burglary in the third degree.

Court Discussion and Decision

A New York Criminal Lawyer said the defendant argues that the imposed sentence by the court is excessive and is appealing the decision of the court to revoke his probation.

A hearing was held in regard to the matter of the defendant violating his probation. When the defendant was sentenced for the crime of burglary in the third degree he agreed to certain terms in regard to his probation. These included reporting to his parole officer. It was found that the failed to do this on at least ten occasions. The defendant was instructed to enroll in a drug treatment program, which he also failed to do. He also agreed to random drug tests, which he also failed.

The record establishes that the defendant violated his probation on numerous occasions, has a long criminal history, a long family history. A New York Drug Possession Lawyer said the County Court made the correct decision when they revoked his probation. Furthermore, the new sentence for the crime of burglary in the third degree is within the statutory parameters of the Penal Law in regard to the crime that was committed.

The court is denying the appeal that is made by the defendant in this case. The ruling from the County Court of Suffolk County to revoke the probation sentence is confirmed and the current sentence stands.

Legal issues can be quite stressful, which is why it is important to have a qualified lawyer on your side. Contact Stephen Bilkis & Associates to speak with one of our lawyers, whether you have been charged with drug possession, theft or sex crimes. Our offices are located around the city of New York for your convenience. Contact us today to set up an appointment for a free consultation to discuss your case.

October 29, 2012

Plaintiffs Bring Suit for Harrassment and Blackmail

In this case, Plaintiffs brought suit against the Defendants for: harassment, blackmailing and conspiring to boycott their classes and attempting to have them terminated from East Texas Police Academy ("ETPA") in retaliation for their testimony in a case against another police officer involved in a shooting incident. A New York Criminal Lawyer said plaintiffs also claimed violations of: their rights to testify freely under 42 U.S.C. § 1985(2); their right to freedom of speech under the First and Fourteenth Amendment; their right to due process under the Fourteenth Amendment; and tortious interference with business relations. Plaintiffs were instructors at the ETPA, in Kilgore, Texas, which provides basic and advanced training for law enforcement officers in the greater East Texas area. Defendants are the police chiefs or sheriffs from seven cities and counties within the greater East Texas area and who possess final authority over the training of the officers employed by their respective agencies.

Before the fall of 1998, Defendants enrolled their officers in ETPA courses on a regular basis, including courses taught by the Plaintiffs. The defendants were not contractually bound to continue using either the ETPA's services or the services of Plaintiffs in particular. In August 1998, Plaintiffs voluntarily testified as expert witnesses against a police sniper from Kerrville, Texas who fatally shot a teenager. The said police officer was not trained at the ETPA nor belongs to the police agencies headed by the Defendants. In the said case, Plaintiffs testified that the Kerrville police officer used excessive force and that the Kerrville police department failed to implement the proper policies necessary to direct the conduct of officers acting as snipers.

A New York Drug Crime Lawyer said the said testimony irked the Defendants and threatened the ETPA that they will all stop engaging their services for officer training. One of them said that Plaintiffs testimony "is in direct conflict with the basic fundamentals and expectations that we have come to enjoy from Academy instructors." It created "conflicts of interest" and violated principles of "cooperative responsibility." They believe that an unacceptable conflict of interest exists whenever a police instructor testifies against a police officer, regardless of location and regardless of whether the instructor had trained the officer. Such a conflict does not exist when an instructor testifies for police officers.

Consequently, Defendants cancelled enrollments in the plaintiffs' classes and barred their officers from enrolling in the plaintiffs' courses in the future. The boycott began in October 1998, and by November 10, 1998, all of Plaintiffs’ basic classes had been dropped from the ETPA schedule, and their off-campus classes cancelled.

A Queens Drug Possession Lawyer said jurisprudence dictates that "[t]he gist of the wrong at which § 1985(2) is directed is not deprivation of property, but intimidation or retaliation against witnesses in federal-court proceedings," the loss of at-will employment can injure a plaintiff for purposes of the statute even though he or she lacks a property interest for purposes of the Due Process Clause.

There was sufficient evidence to show that the Defendants agreed to retaliate against Plaintiffs on account of their testimony against police officers in a federal case, and the retaliation took the form of interference with the Plaintiffs’ employment relationship, particularly by boycotting their classes and pressuring the ETPA to fire them. A Nassau County Drug Possession Lawyer said coercing an employer to fire an employee is the classic case of interfering with employment relations. The Court held that the Defendants’ conduct was objectively unreasonable in light of clearly established law, and the district court properly denied their motion for summary judgment with respect to the § 1985 claim.

With respect to the violations under the First Amendment, the district court emphasized that a First Amendment retaliation claim in the employment context has four elements: (1) the plaintiff suffered an adverse employment decision, (2) the plaintiff's speech involved a matter of public concern, (3) the plaintiff's interest in speaking outweighed the governmental defendant's interest in promoting efficiency, and (4) the protected speech motivated the defendant's conduct.

The Court held that the Defendants have not articulated any relevant, cognizable interests in suppressing the Plaintiffs' speech, while the latter have presented a strong First Amendment interest in testifying about police brutality and inadequate supervision and training. The Plaintiffs' interest in testifying easily outweighs the Defendants' interest in suppressing their speech, given that the speech involved unrelated police agencies hundreds of miles away. To stop using a particular instructor or academy to penalize protected speech, Defendants must establish first why their need to suppress the speech outweighs the countervailing First Amendment interest in free expression.

With respect to Plaintiffs’ claim that they were denied due process, and their claim under state law for tortious interference with business relations, the Court reinstated Part IV.C of the panel opinion, which reversed the district court's denial of summary judgment on the due process claim, and also reinstated Part V of the panel opinion, which affirmed the district court's denial of summary judgment on the state law claim.

Our New York Criminal Lawyers from Stephen Bilkis and Associates can assure you are afforded full protection and due process under the law. It has offices situated within New York Metropolitan area, including Corona, New York.

October 29, 2012

Court Determines if Evidence of Previous Crimes Can be Admitted

The People of the State of New York are the respondents in this case. Peter Wayne Orth is the appellant. The case is being heard in the Supreme Court, Appellate Division, Second Department. A New York Criminal Lawyer said the defendant is appealing a judgment made by the Supreme Court of Suffolk County that was rendered on the 8th of March, 1977. The judgment convicted the defendant of robbery in the first degree upon a jury verdict. The defendant has two other orders from the same court, one from the 15th of October 1979 and the other from the 5th of January, 1982, both denying the motion for the judgment of conviction to be vacated and the indictment dismissed.

Case Background

The defendant has been convicted of a robbery that took place at a drugstore in Babylon. During the course of the robbery both drugs and money were stolen.

During the defendant’s trial, a New York Criminal Lawyer said the People on issue of identifying the defendant as one of the people who committed this crime, asked permission to submit evidence that the defendant had robbed drug stores and stole money and drugs from them on three separate occasions. The trial court allowed the evidence to be submitted.

The defendant argued that this evidence had nothing to do with the current crime he was being indicted for. He further argued that prior crimes being submitted as opposed to a witness attesting that the defendant was involved was objectionable as the prior crimes did not prove that he was a part of this robbery and rather just placed him in a category of being a robber.

Court Decision

In this particular case, the evidence of previous crimes should not have been allowed to be submitted during the trial court hearing. A New York Drug Possession Lawyer said this evidence did not provide any proof that the defendant was a part of the robbery and the plaintiff had no other witnesses to bring forth and place the defendant at the crime scene.

After reviewing the facts of the case, the defendant is granted a reversal in the interest of justice. His case will be remitted to the court for a retrial of the case.

It is important to obtain legal expertise if you feel that your rights have been violated. Contact Stephen Bilkis & Associates to speak with one of our experienced attorneys, whether you have been charged with drug possession, theft or sex crimes. We have lawyers who specialize in every field of the law. We are willing to offer a free consultation to discuss your case and help you determine what your rights are in the matter. Contact one of our New York City offices to set up an appointment with one of our lawyers today.

October 28, 2012

drugs

A woman was convicted after a jury trial of murder. Upon the conviction, a New York Drug Crime Lawyer said the woman was sentenced to a term of life imprisonment with a mandatory minimum period of seventeen years. She was also convicted of attempted robbery and sentenced to an indeterminate term five years imprisonment with a mandatory minimum period of two and one-half years to run concurrent with the life sentence.

The woman moves personally without a notice of motion or sworn affidavit, for re-sentencing to a determinate term of imprisonment. She did, however, verify that she served the District Attorney. Notwithstanding such service, the District Attorney failed to file any opposition. Consequently, on February 4, 2010, the court deemed the woman's motion submitted on default.

Irrespective of the District Attorney's default, a New York Criminal Lawyer said the woman fails to provide any legal basis upon which the court may grant the relief requested. While she refers to the recently passed laws that may allow people who are serving life sentences to be considered to be re-sentenced to an alternate determinate sentence, she fails to identify any legal basis in support of her application. Indeed, it appears to the court that her claim is predicated on having been denied parole, stating that he has been denied parole release based solely for her crime, which will never change. It is served above and beyond the minimum term on both indictments and the maximum on one that she is not asking for a reduction that will minimize the responsibility to accept the punishment of her crime, however, the past cannot be change and to be denied release solely for her offense, which will not change is illogical and excessive. The woman believes that she is eligible to file an application under the standards of law and respectfully that she be re-sentenced to a determinate term of imprisonment.

Although not specifically stated, it appears the legal authority upon which the accused relies is the Drug Law Reform Act (DLRA). A Nassau County Drug Possession Lawyer said the DLRA was enacted in response to the sentencing policies under New York's Rockefeller Drug Laws. Such reform was intended to ameliorate the sentences imposed on individuals who had committed drug crime offenses. Subsequently, in 2009, the Legislature enacted the DLRA 3, which extended sentencing relief to those convicted of Class B, C, and D drug crime offenses. Under the DLRA 3, qualified applicants convicted of a Class B drug offense are entitled to a reduced determinate sentence in accordance with New York's Penal Law. The criminal law entitles an accused to petition for re-sentencing if that accused is in the custody of the Department of Correctional Services; if the accused has been convicted of a Class B felony offense committed prior to January 13, 2005; and if the accused is serving an indeterminate sentence with a maximum term of imprisonment exceeding three years.

Accordingly, the DLRA reduced mandatory minimum prison sentences for first-time non-violent felony drug crime offenders, and reduced the mandatory minimum prison sentence (fifteen years to life) for offenses to eight years imprisonment (first-time offenders). Thus, the act permitted only the accused serving life sentences for non-violent drug crime offenses to apply for re-sentencing. A Queens Drug Possession Lawyer said nothing contained in either the DLRA or CPL permits an accused convicted of a violent felony to be re-sentenced to a determinate term of imprisonment. Consequently, having been convicted of murder, a violent felony offense, the accused is ineligible as a matter of law to be re-sentenced to a determinate term of imprisonment.

Clearly, the accused woman’s frustration over having been denied parole has prompted her to plead with the court to simply re-sentence her to an indeterminate sentence. Even if such a remedy existed, which it does not, it would nevertheless be inappropriate to re-sentence since it was a lawful sentence when imposed and remains so. It would further be inappropriate since doing so would effectively permit the accused to circumvent the authority and discretion of the Division of Parole.

Finally, the woman seeks the appointment of counsel as being indigent. Having advanced no issue before the court, however, the court has no statutory authority to grant the woman's request. The woman's motion is denied in all respects.

When drug related offenders are placed in isolation either in jail or in rehabilitation centers, they usually have the time to ponder on their wrong doings. Some eventually change for the better and aims to live an ordinary life outside of their isolation. If you believe that someone deserves to be given another chance, call the office of Stephen Bilkis and Associates and speak with the Bronx Criminal Lawyers together with the Bronx Drug Attorneys.

October 28, 2012

Appellate Court Reverses Indictment for Larceny Charges

The respondent and defendant in this case is M.K. The People of the State of New York are the appellants in the case. The Court of Appeals in the state of New York is hearing this case. There were two indictments filed against the defendant, Kirkup, in the Extraordinary Special and the Trial Terms of the Supreme Court of Suffolk County. Indictment 7256 charged the defendant with committing the crime of conspiracy. Indictment 7258 charges the defendant of violating section 1864 of the Penal Law.

Case Background

A New York Criminal Lawyer said the People of the State of New York submitted evidence to the Grand Jury that showed that A.F., who is a pharmacist that operates a small retail drug store in Suffolk County along with his successors in interest had ordered drugs from pharmaceutical houses solely for the use of the Suffolk County Home, but in actuality for selling to the public.

The scheme involved Freistadt and his successors obtained the drugs at an institutional price that was a lot lower than the price paid by retail druggists. The defendant M.K. as a favor to his long time friend A.F. allowed him to use the County Home as a front for his scheme. M.K. was the Commissioner of Public Welfare for Suffolk County.

Case Discussion

A New York Criminal Lawyer said the Penal Law provides that if two or more people conspire to commit a crime or cheat and defraud another individual by any means that is considered criminal or to commit an act that is injurious to the health of the public, each will be guilty of a misdemeanor.

The Grand Jury concluded that all of the elements of a crime were present and the defendant Kirkup conspired with the druggists to commit a crime. It is obvious that the druggists needed help from the defendant in order for the scheme to work.

On appeal, the Appellate Division found that there had been no larceny shown in the case as there was no proof the drug houses had been cheated. A New York Drug Possession Lawyer said no evidence was provided to show that the companies did not know about the operation of the scheme to obtain the institutional discount.

However, even Freistadt thought it was necessary to involve a scheme for the prices and indicated that he used cashiers checks so the drug companies would not know that the drugs were intended for use in his pharmacy. He also made sure that the drugs ordered were seen to be intended for the County Home and the drugs were even delivered there.

Case Decision

The Appellate Division dismissed the indictment for conspiracy against the defendant. We find that this was the wrong thing to do and therefore reinstate the indictment of conspiracy. We also find that the indictment against the defendant for violation of section 1864 of Penal Law must be reinstated as well. This section provides that a person who works as a public officer and wrongfully obtains, receives, converts, disposes of or pays out or aids and abets another in receiving, obtaining, disposing, converting, or paying out of money or property is guilty of a felony. As the defendant held a public position during the conspiracy, this indictment will be reinstated as well.

If you need legal advice of any kind, whether it is for a theft charge, drug possession or sex crimes, contact Stephen Bilkis & Associates. We have a team of expert lawyers just waiting to discuss your case with you. We offer offices throughout New York City for your convenience. Contact us today to come in and discuss your case during a free consultation.

October 27, 2012

Court Rules on Use of Public Health Law

This is a matter dealing with an application made by P.H., the District Attorney of Suffolk County. He has entered a petition for a judgment and determination of forfeiture under Article 33, Section 3388 of the Public Health Law of the State of New York. The respondent of the case is S.C. The case is being heard in the Supreme Court of the State of New York, Criminal Term in Suffolk County, Part II.

Case Background

A New York Criminal Lawyer said on the 3rd of September, 1980, the defendant – respondent S.C entered a plea of guilty to criminal sale of a controlled substance in the third degree. This plea satisfied the seven charges that were made against him in an indictment. The defendant was then sentenced to a term of imprisonment of one to three years.

The petitioner District Attorney of Suffolk County has now moved for an order for the defendant to forfeit his 1977 Chevy car. The grounds for this forfeiture are that this was the car that the defendant used to sell cocaine and meth to an undercover police officer.

A New York Criminal Lawyer said a formal hearing was held on this motion and the defendant conceded that this was the car that was used to sell narcotics to undercover police officer. The defendant argues that a forfeiture should not be entered against him because selling narcotics from the car is a mere technical violation and did not amount to a significant connection with the criminal activity that was conducted.

Case Facts

On the first of February, 1980 the defendant met J.G. inside a Newmark and Lewis store located in the city of Patchogue, New York. J.G. is an undercover police officer. The defendant and J.G. discussed the sale of an eighth of an ounce of cocaine and meth while in the store. They left the store and S.C. suggested that the complete the sale in his car that was located in the parking lot of the store. The two went to the Chevy and money and narcotics were exchanged. The narcotics were on the defendant and not concealed in the vehicle.

Officer Glasso stated that he did not see the defendant drive the car to the parking lot of the store or leave in it afterwards. The only time the narcotics were in the car was during the sale.

Case Background and Decision

A New York Drug Possession Lawyer said the question presented to the court is whether the use of the vehicle as the site for a drug sale constitutes a facilitation of the sale that is sufficient to invoke the provisions of the statute of the Public Health Law.

The Public Health Law provides for a forfeiture order with respect to any vehicle that is used to facilitate the transportation, carriage, concealment, purchase, or sale of any controlled substance.

The court has not found any similar cases in the state of New York, but there have been several decisions made in Federal Court that are similar in nature. The Federal Courts have typically ruled that forfeiture is required if at any time the drugs were inside the vehicle.

In this case, the defendant suggested that his car be used for the sale of the narcotics and would have been successful in this transaction had the sale of the drugs not been to an undercover cop. For this reason, the Public Health Law is applicable and the petition is granted.

Stephen Bilkis & Associates can help you through any type of legal issue that you may have, whether you have been charged with theft, a drug offense or sex crimes. Contact one of our offices in New York City to set up an appointment with one of our expert lawyers. A free consultation is provided on your first visit to our office.

October 26, 2012

Court Dismisses Indictment Against Defendant

This is a case of appeal by the defendant J.T.. The respondent of the case is the People of the State of New York. This case is being heard in the Supreme Court, Appellate Division, Second Department. The defendant is appealing a judgment that was made in the Supreme Court of Suffolk County. The judgment was rendered on the 19th, 1989 and convicted him of the criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the first degree.

Case Background

A New York Criminal Lawyer said on 1985, the defendant, J.T., and his business partner ran a successful roofing business in Suffolk County. They had the business for several years. For several years the defendant, his wife, his business partner, and several of their mutual friends were weekend cocaine users. The defendant used one gram of cocaine a week and this was supplied to him by his business partner.

The defendant met a confidential informant, C.D., in 1980. He met him again in April of 1985 through a mutual friend. The defendant and C.D. became close friends during the following months. The defendant bought increasing amounts of cocaine from C.D..

In July of 1985 a peculiar set of events occurred where the defendant arranged for C.D. to sell his own partner, undercover detective P.M., a half kilo of cocaine for the price of $27,500.

According to the Detective he was pretending to be a drug dealer and it was natural for him to pretend to be seeking new sources of cocaine. The defendant states that C.D. informed him that M. was a major drug dealer and threatened C.D.'s life if he could not come up with the amount of cocaine that he was looking for. C.D. asked the defendant to come up with a half or a kilo of cocaine. The defendant feared for his friends life and agreed to do this.

The defendant attempted to deliver the drugs on the 25th of July, 1985 and the detective rejected the supply stating that it only weighed four ounces. The defendant returned a few hours later with a half a kilo and was arrested.

Case Discussion

A New York Drug Possession Lawyer said the argument on appeal is that the defendant was entrapped. The evidence of the case shows that the defendant had never admitted to dealing cocaine to C.D.. Furthermore, it cannot be implanted in a person’s mind to commit a criminal act. It is felt that this is what happened in this case. The defendant only committed the crime because it was suggested by someone he thought of as a friend.

Furthermore, there is no evidence that has shown that the defendant ever possessed more than a gram of cocaine prior to this point. The idea that he would possess over four ounces and sell this amount is somewhat absurd.

Court Decision

The court orders that the judgment be reversed based on the facts provided in the case. The indictment against the defendant is dismissed and the matter will be submitted to the Supreme Court of Suffolk County to be entered.

At Stephen Bilkis & Associates it is our goal to help protect your rights. Contact one of our offices located in New York City to discuss your legal matter with one of our experienced attorneys, whether you have been charged with drug possession, theft or sex crimes. We offer free consultations on your first visit to our offices. Call us today to schedule an appointment to ensure that your rights are protected.

October 25, 2012

Court Dismisses Indictment Against Defendant

This case is being heard in the Supreme Court, Appellate Division, Second Department. The case deals with an appeal being made by O. B. The respondent of the case is the People of the State of New York. The defendant is appealing a verdict from a judgment made by the County Court of Suffolk County that was rendered on the 8th of May, 1979 and convicted him of criminally negligent homicide.

Case Discussion

A New York Criminal Lawyer said the defendant’s guilt in this matter was not established beyond a reasonable doubt. At the time of the incident the defendant was driving his vehicle with three passengers inside it. He was going approximately 35 miles an hour. All of the passengers had smoked marijuana. Quite suddenly, one of the passengers told the defendant to stop the car. The passenger was a fifteen year old girl. At first the defendant ignored her and continued to drive. She continuously repeated her request for the car to be stopped and threatened to jump out of the car if he did not stop.

The defendant did not believe the girl would actually jump and continued driving. The girl opened the car door and jumped from the moving vehicle. A New York Criminal Lawyer said the defendant stopped the car about 200 yards down the road from where she jumped out. One of the passengers of the car saw that the girl was moving in the road way and ran towards her. Before the other passenger reached her, the girl was hit by another vehicle coming down the road and fatally injured.

The indictment charged the defendant with manslaughter in the second degree. The indictment alleged that the defendant accelerated the car when the defendant was jumping from it.

The defendant waived his right to a jury trial and instead was tried by a judge from the county court. A New York Drug Possession Lawyer said the trial court found the defendant guilty of the lesser included crime of criminally negligent homicide. The trial court did not find that the defendant had posed a threat to the victim. It was implied that the defendant was under the influence of marijuana at the time, but this was not proven during his trial, but the court took judicial notice of this anyway. The court held that the defendant should have known that the decedent would carry out her threat to jump from the car based on her condition of being high on marijuana. The court also determined that the defendant put the girl in grave risk of death by not stopping the car when she requested and not stopping the car sooner after she had jumped out.

Court Decision

After reviewing the facts of the case, the judgment is reversed and the indictment is dismissed. The feeling of this court is that the prosecution failed to prove without a doubt that the defendant was guilty of any crime. He had no real way of knowing that the decedent would actually jump from the car. The case will be remitted to the County Court of Suffolk County for this order to be entered.

Contact Stephen Bilkis & Associates to speak with an experienced lawyer regarding any legal issue that you may have, whether you have been charged with drug possession or sex crimes. We have offices located throughout New York City for your convenience. You may contact us at any time to set up a meeting with one of our lawyers. We will be happy to discuss your legal matter with you during a free consultation.

October 24, 2012

Appellant Claims Evidence Improperly Admitted at Trial

On February 1986, there was a gathering of people in the apartment of a woman. The woman requested a man to bring to that event several glassine bags of a white powdery substance which the state asserts was heroin. A New York Drug Crime Lawyer said that some time during the course of the evening the substance was injected into the body of the woman and her boyfriend. The next day, the substance was injected by two other men to their own body. One of the men took 11 envelopes after agreeing to help the man sell the substance. At about 4:00 p.m. that day, the woman became ill and died of causes apparently unrelated to the case and an investigation was conducted.

As a result of a search of the apartment, several items were seized including a piece of mirror with white powder residue, a box found in the medicine cabinet containing a black shoe lace, syringe, hypodermic needle and bottle cap cooker, an empty bottle cap found in the medicine cabinet, a syringe and needle found in a dresser drawer, and a plastic bag containing white powder which was found in a kitchen drawer. A New York Drug Possession Lawyer said after testing by a forensic scientist, only the bottle cap cooker tested positive for the presence of narcotics. The forensic scientist who performed the autopsy of the woman's body found the presence of substances including quinine but no traces of the presence of either heroin or morphine.

The man and his companion were indicted for three counts of criminal sale of a controlled substance in the third degree and two counts of criminal injection of a narcotic drug. A Nassau County Drug Possession Lawyer said the man's motions for severance were denied and a joint trial was held wherein the other man chose not to testify but the man testified on his own behalf.

Eventually, the man was convicted of three counts of criminal sale of a controlled substance in the third degree, one count of criminal injection of a narcotic drug and one count of attempted criminal injection of a narcotic drug. He was given concurrent prison sentences. Still, the man raises an appeal. The issues stem from the denial of the man's motions for severance of the trial and the admission into evidence, over the man's objection, of a statement made by the other man.

The man contends that the statement made by the other man to the police was ineffectively redacted and therefore improperly admitted into evidence at trial.

A Queens Drug Possession Lawyer said the other man described how he arrived at the woman's apartment the day after the event. According to the man, the woman had called him and requested his assistance in selling the envelopes. He testified that he entered the bathroom and injected part of the contents of an envelope. He also testified that he had used heroin in the past on more than 200 occasions and that the sensation was similar to those prior experiences. According also to him, he drove with the man in order to look for purchasers. They encountered another person and they returned to the woman’s apartment.

The person encountered by the men testified that he injected himself with the contents of a packet. He also testified that he had used heroin in the past on more than 100 occasions and testified that the reaction on that day was similar to that of previous occasions.

Finally, the court rejected the man's contention that he was deprived of his constitutional and legal rights to a speedy trial. According to the man, the time from the date of his arrest to the commencement of trial, was eight months and 14 days and, therefore, his right to a speedy trial was violated. However, at the hearing on the man's motion, the state contended that they were present at every calendar call.

The man's remaining arguments, including his claim that his sentence was harsh and excessive, have been examined and found to be without merit.

Some of our young individuals turn out to be hooked in illegal activities. They sell and use drugs without even thinking that it might be dangerous to their health. If you happen to know something about drug related activities, you can ask help from the NYC Heroin Lawyer or New York City Drug Crime Lawyers. However, if you’re the one who need legal representation because of the involvement you obtain, you can call the NY Criminal Attorneys at Stephen Bilkis and Associates.

October 24, 2012

Defendant Appeals Based on Lack of Territorial Jurisdiction

On this proceeding, the state presented evidence about a pharmacologist who was a member of a conspiracy to procure heroin. The pharmacologist and his accomplices were guilty of attempted criminal possession of a controlled substance based on a series of events that commenced in the state. Even if the jury found him guilty of both the crime, on appeal, he challenges the state’s exercise of territorial jurisdiction over the second offense only.

The evidence revealed that the leader of the conspiracy was a man. A New York Criminal Lawyer said through a wiretap surveillance of the telephone line to the leader’s residence, the law enforcement authorities discovered that the leader was raising $120,000 to pay a courier fee to obtain a large quantity of heroin to the state. he intercepted conversations cryptically identified the various players in the proposed drug exchange. The state theorized that the pharmacologist's role in the project was to test the purity of the heroin.

The leader and another individual discussed the pharmacologist’s availability for the project. Upon receiving a telephone call advising that the pharmacologist had been located. Thereafter, a woman used the leader's telephone to make airline reservations for three men to fly at 8:00 p.m. that evening and all of them were under the same surnames. The law enforcement authorities observed the pharmacologist together with two other men aboard the flight. At the request of an investigator, a state’s troop followed the activities of the three men. A New York Criminal Lawyer said after registering at the airport's hotel under aliases, they were seen entering and leaving each other's rooms during the next 24 hours.

The leader called the other man, who was with the pharmacologist, to ask if they had made contact with the drug courier. When the man stated that the connection had not yet been accomplished, the leader asserted that he would page the individual himself and indicated he was bringing the courier fee that day.

Later that day, the leader arrived with a woman and met with the men at the hotel. Undercover officers saw the woman in the lobby restaurant during the time interval.

At 9:30 p.m., the leader paged a special agent, an undercover officer of the states drug enforcement agency, who was posing as the drug courier with whom the group was negotiating the drug exchange. The special agent returned the leader's call using the telephone number displayed on his pager. During the conversation, the leader directed the special agent to contact the man at the hotel to arrange the sale. The special agent did as he was instructed and, in the course of his conversation with the man at the hotel, he agreed to call him in the morning to arrange the meeting. The man also expressed a need to change a hotel. Therefore, the following morning, two men and the pharmacologist checked out of the hotel and registered as guests at a nearby inn. The special agent and the man scheduled the exchange that day at the inn.

The enforcement officers recorded a telephone conversation via the wiretap of the leader's residence at which a woman advised the leader of the time and location of the meeting. A New York Drug Possession Lawyer said the leader directed the woman to call him after the exchange and indicated that all he needed to say was he was on his way home.

Less than an hour later, wearing a transmitting device, the special agent met the woman in the lobby of the inn and the two men proceeded to the woman's room. Telling the special agent to wait for him, the woman went to the pharmacologist's room, retrieved a green and red paper bag, and returned to the special agent to display the contents of the bag which was $120,000 in cash. The special agent then retrieved the drugs from a vehicle in the parking lot, returning immediately to the woman's room where he exhibited several packages containing approximately 3.5 kilograms of heroin. The woman declared his intent to return home that night with the drug, hoping that he and the special agent could do a lot of dealing in the future. Indicating the drugs would be sold in the city directly to narcotics users, the woman suggested if he and his friends were in a position to buy as much heroin as the special agent's contacts could supply.

The woman removed small samples of the drugs from each package and left with the money and the samples, claiming he would return after the purity of the drug had been tested. A few minutes later, the woman come back, visibly upset, announcing to the special agent that he had seen someone suspicious in the hotel stairwell. At trial, one of the plainclothes officers involved in the surveillance effort testified that he accidentally encountered the woman in the stairwell.
After receiving assurances from the special agent that he had not been accompanied by anyone, the woman again left his hotel room and went to the pharmacologist's room, which was located on a different floor of the hotel. About 20 minutes later, the woman rejoined the special agent and terminated the deal on the basis that the heroin had been tested but was of insufficient purity. He referred to two tests that had been performed, an acid and a burn or temperature test, claiming the narcotic had failed both. Although the transaction was cancelled, the woman told the special agent he would call him later that evening.

Soon thereafter, the pharmacologist, a man and the woman checked out of the hotel and boarded a courtesy van destined for the airport. When they alighted at an airport terminal, they were arrested. The pharmacologist was carrying $80,000 in cash, the man and the woman had $20,000 each. In addition, the man was found in possession of an electric burner, coffee pot, thermometer, copper wire and other materials that could be used to test the purity of heroin. Two containers of mineral oil of a type that could be used for the drug testing were found in the hotel room vacated by the pharmacologist.

The criminal proceedings were commenced against the leader, the woman, the two men and the pharmacologist. A New York Sex Crimes Lawyer said each of them pleaded guilty, but the pharmacologist proceeded to a jury trial. In addition to evidence of the events articulated, the state admitted portions of one of the man's plea allocution in which he acknowledged that, had the events gone as planned, the heroin was to be transported to the city.

Based on records, under penal law, a person is guilty of an attempt to commit a crime when, with intent to commit a crime, he or she engages in conduct which tends to effect the commission of such crime. A person is guilty of criminal possession of a controlled substance in the first degree when he or she knowingly and unlawfully possesses four or more ounces of a narcotic drug.

The pharmacologist’s remaining argument, that reversal is warranted due to the submission of a written decision sheet which mirrored the legal text of the state's jurisdictional theories, is not properly for the court’s review. Although the pharmacologist objected to the trial court's failure to include in the decision sheet an additional jurisdictional theory not offered by the state. Consequently, the court ordered to affirm the appellate division decision.

Securing our family against crime is not only one of the hardest but also one of the most important jobs to do nowadays. We need to protect them from the wrong influence of friends and from people who act negligently because of drug use. If an unfortunate thing occurs such as your child getting involved in a drug activity or crime, you can ask assistance from the NYC Drug Crime Attorney or NY Heroin Lawyers. Stephen Bilkis and Associates also offer the services of New York City Criminal Lawyer for your heroin related legal disputes.

October 24, 2012

Court Discusses Use of Opinion Testimony

The Facts of the Case:

On a Tuesday morning, at 4:37 A.M, a police officer was called to the area outside an establishment by the report of a fight. Upon arriving, the officer saw no fight, but observed the defendant's vehicle parked in the lot with the engine running and the lights on. The officer approached the vehicle and in speaking to the defendant and her passenger, he noted that the defendant was extremely unsteady on her feet, had watery eyes, and had an extremely hard time to understand even the simplest of instructions. Upon testing, the defendant's blood alcohol level was .00%, showing the absence of alcohol. While defendant refused a request to have a urine sample given for testing, a full DRE was administered at CTS. Thereafter, defendant was arrested and charged with driving while impaired by a drug in violation of the Vehicle and Traffic Law.

The defendant then filed a motion to dismiss the misdemeanor criminal charge against her of driving while ability impaired by drugs and argues that the first insufficiency arises from the fact that there is no specific statement in either the simplified traffic information or the supporting deposition that the defendant was actually observed behind the steering wheel, in the driver's seat, or even in the vehicle; that the statement that the other person present was her passenger merely infers that the defendant was the driver; that the second insufficiency arises from the fact that neither the simplified traffic information nor the supporting deposition specify the drug which allegedly impaired the defendant.

The Ruling of the Court:

A New York DWI Lawyer said the instant case requires the court to review an area in which there is a conflict between recent trial court opinions from the First Judicial Department, and trial court and appellate opinions from the Second and Third Judicial Departments. A driving while impaired by drugs prosecution requires that the individual's impairment be shown to have been caused by a drug specifically listed in the Public Health Law. Recent First Department courts have held that any such prosecution must therefore be based on either an admission by the defendant that he or she has used the specified drug, or a chemical analysis of the defendant's blood or urine showing the presence of the drug. This requirement concededly allows an individual such as the instant defendant, who neither admits drug use nor consents to a chemical test, to escape prosecution. Second and Third Department courts, however, have determined that opinion testimony from police trained as drug recognition experts as to the identity of the drug causing the impairment is admissible, thus allowing it to supply the required element. The herein court follows the Second and Third Departments’ precedent. Thus, the defendant's motion must be denied.

On the first claimed insufficiency, regarding operation, the Court has held in various cases that the operation of a vehicle is established on proof that the defendant was merely behind the wheel with the engine running, without need for proof that the defendant was observed driving the car or operating it so as to put it in motion. Thus, the fact that the vehicle was never observed in motion does not render the instrument defective, since the vehicle was reported to have its engine running. As far as the alleged absence of support for the defendant's having been behind the wheel is concerned, it is statutorily dictated that a simplified traffic information has a different, and lesser, requirements for facial sufficiency than a misdemeanor information. In fact, a simplified traffic information is not required to have factual allegations of an evidentiary nature, whether hearsay or non-hearsay, and if a supporting deposition is requested it can be based on hearsay or non-hearsay so long as it provides a reasonable cause to believe that defendant committed the charged offenses. The required provision of reasonable cause to believe that the defendant committed the charged offense may be supplied by facts which permit an inference that a required element, such as operation of a motor vehicle, was present, with no requirement of more direct proof. For this reason, the affidavit of the police officer stating that the other individual was the passenger of the defendant in the vehicle permits, as counsel acknowledges, an inference that the defendant was the driver of the vehicle. Indeed, even if the defendant were not to have been observed in the vehicle, but merely near it, the totality of the circumstances including proximity to the vehicle, the fact that the lights were on and the engine running, and the presence of a passenger could suffice. Moreover, what was annexed and affixed to the simplified traffic information was in fact a combined DUI/DWI Supporting Deposition and Bill of Particulars, subscribed to by the arresting officer. The bill of particulars portion of the document does in fact specifically record the arresting officer's observation that the defendant was at wheel, in vehicle, with keys in ignition, and motor on. Under the rules, a bill of particulars is generally not a discovery device, but a written statement by the prosecutor which serves to clarify the pleading. A Nassau County DWI Lawyer said the defendant charged by way of a simplified traffic information is not entitled to a bill of particulars upon demand. When a bill of particulars is used in conjunction with an instrument such as a long form information, which must be supported by non-hearsay allegations, the prosecutor's hearsay statements therefore cannot cure a deficiency.

Nonetheless, if voluntarily provided in conjunction with a simplified traffic information whose supporting deposition may be based upon information and belief, and if in fact subscribed to by the arresting officer as part and parcel of the supporting deposition, a bill of particulars must be considered in assessing the instrument's sufficiency. Here, it renders the instrument sufficient in this regard.

On the second claimed insufficiency, regarding the drug impairment, not only is there no mention in either the simplified traffic information or the supporting deposition of the identity of any drug under which the defendant was purportedly under the influence, but both the supporting deposition and Criminal Procedure Law notice served upon the defendant record the defendant's persistent denial of having been under any such influence. While the defendant has submitted what purports to be a clean toxicology screening allegedly performed within 48 hours of the incident by the defendant's own laboratory, the supporting deposition does refer to a full DRE having been administered at CTS, the Nassau County police central testing station, prior to the arrest of the defendant. The inference drawn is that the arrest was based upon the results of that full DRE. In fact, the People served voluntary disclosure forms (VDFs) upon the defendant and included within those VDFs was a two page drug influence evaluation. Purportedly completed by a drug recognition expert (DRE), this evaluation, after detailing the investigation, examination, and testing to which the defendant was subjected, and upon which the drug recognition expert's opinion is based, concludes that the subject is under the influence of PCP and Cannabis and her ability to operate a vehicle safely is impaired. The utility of this opinion remains a matter of some controversy, with some recent case law supporting the proposition that it has no legal value. Were this proposition accepted, dismissal would be appropriate. As held in the case of People v Grinberg, chemical analysis is necessary for a prosecution under Vehicle and Traffic Law for driving while ability is impaired by drugs. This is because one of the elements of this offense is that the drug or substance alleged to have caused the defendant's impairment must be listed in section 3306 of the Public Health Law. Absent such chemical analysis, or perhaps defendant's admission, the prosecution could not prove that the defendant was impaired by one of the listed drugs. The court is not unmindful of the People's argument that there appears to be a gap in the legislative scheme, that is, one that allows drivers who appear to be under the influence of drugs and who refuse to take a blood or urine test to escape prosecution. However, this gap must be filled by legislative action and not by judicial fiat. In another case, the court rejected the argument that the officer's observations, standing alone, were sufficient to provide reasonable cause to believe that the defendant was under the influence of a drug prohibited by Vehicle and Traffic Law. Concluding that unlike the symptoms of intoxication, which are universally recognizable, the effects of any particular drug or class of drugs listed in Public Health Law, are not necessarily uniform in the way they affect an individual's appearance, and that, therefore, barring defendant's admission, only a laboratory analysis can provide the threshold facts to show defendant ingested a drug. Any other interpretation would allow a non-expert to speculate as to which drug was ingested by defendant. However, in a similar case, it was observed that over the last several years, the Los Angeles Police Department has developed a series of clinical and psycho-physical examinations. These procedures are designed to enable trained police officers to determine whether a suspect is under the influence of drugs and, furthermore, what category of drugs he has been using. The Nassau County Police have been actively involved in the training of police officers in these procedures. The program and procedures are controversial in that their end product is the expression of an opinion by the drug recognition expert (DRE) as to the use by a defendant of a particular category of drugs.

While this case editorializes that the admissibility of an opinion by a drug recognition expert is questionable, it goes on to note that such opinions have been determined to be admissible in New York, at least in the Second and Third Judicial Departments. As a matter of fact, the court held in the case of People v Quinn that the DRE procedure was subjected to a hearing to determine its scientific validity pursuant to the standards set forth in Frye v United States, and People v Middleton, and was determined to be admissible. Moreover, in People v Villeneuve, the Appellate Division rejected a challenge to the admissibility of testimony of a police officer as a drug recognition expert. Under Villeneuve and Quinn, therefore, the conclusion of the prior two cases mentioned, that there is a strict admission or analysis requirement which forms the sole criteria for proceeding under Vehicle and Traffic Law, is incorrect. The written record of an opinion of a DRE can, and in the instant case does, provide reasonable cause for believing that the defendant committed the offense charged.

Thus, the issue now is whether the failure to have referred to, summarized, or annexed the drug influence evaluation to the supporting deposition renders the accusatory instrument dismissible. It would appear that it does. As stated by Practice Commentaries in what may be a rare case a timely filed deposition might not establish reasonable cause. Such failure renders the information insufficient on its face and dismissible. However, a counsel should be aware that filing an insufficient supporting deposition is not a jurisdictional defect. So, the insufficiency is waived by the failure of the defense to move for a dismissal. And as stated, a motion to dismiss for lack of a sufficient supporting deposition, like all other pre-trial motions, must be made in accordance with N.Y. Criminal Procedure Law which requires pretrial motions to be made within 45 days of arraignment unless the court fixes additional time. Like the herein case, the Appellate Term has held in the case of People v Key that a supporting deposition voluntarily provided to the defendant must meet the same statutory requirements as if it had been demanded; and that where it fails to set forth necessary facts, such as those from which operation could be inferred, it renders the instrument insufficient.

However, in affirming the Appellate Term's reversal of the lower court's dismissal of the instrument in Key, the Court of Appeals observed, that such a defect is waivable. Since a simplified traffic information can proceed to trial without any supporting deposition at all, and hence without any facts providing reasonable cause, it is unacceptable that absence of a factual allegation in the deposition is non-waivable. In the case of Key, since the motion was not timely made, the failure to adequately allege operation was waived. In People v Myrthil, the Appellate Term unanimously affirmed a judgment of conviction, holding that defendant failed to make a timely motion to dismiss the simplified information. Here, it must be noted that the case has been pending for almost two years, was on the trial calendar more than half a dozen times, and has been substantially delayed by the defendant herself having spent almost a full cumulative year in warrant status. The only defect which could support dismissal is the failure to summarize, include in, or annex to the supporting deposition itself a document which would supply the missing element. A New York Criminal Lawyer said this document has been in the defendant's possession for almost two years, having been supplied 48 days after arraignment. If granted at this extremely late date, the defendant's motion would do no more than force the case to be re-filed. In view of the foregoing, the court finds that the motion is untimely, and any alleged defect has been waived.

Accordingly, the motion is denied.

Bronx County Criminal Defense Lawyers from Stephen Bilkis & Associates have the experience, skill and competence to provide you with the best legal representation. For a free consultation, contact us at our numbers or visit any of our offices and speak with our Bronx County DWI Defense Lawyers, Bronx County Drug Crime Lawyers, and the like.

October 24, 2012

Court Rules on SORA Case

A man lived in his mother’s house with his sister who was a minor. One day, the man chanced upon his sister in the bathroom of their house. he man tried to rape his sister. The sister resisted and was able to escape from her brother. She reported the incident to their mother and she reported the incident to the police.

Her brother was charged with attempted rape in the first degree and sexual abuse in the first degree. Prior to the arraignment, the lawyer for the man asked the trial court to order a psychiatric evaluation of the accused. A New York Criminal Lawyer said two psychiatrists examined the accused and they had similar findings. The first psychiatrist rendered an opinion that the accused suffered from psychiatric disorders which were not specified. A second psychiatrist rendered an opinion that the accused suffered from psychosis. Both of them agreed on the finding that the accused was a threat to himself and to others but that he was fit to stand trial because he was capable of understanding the nature of the charges against him and he can assist in defending himself. Both psychiatrists also recommended that the accused be hospitalized. For this reason, the accused was placed under the custody of the Commissioner of Mental Health.

The accused pleaded guilty to sexual abuse in the first degree and he was sentenced to six months imprisonment and ten years probation.

After he pleaded guilty, the court then scheduled a risk-level hearing as mandated by the Sexual Offender Registration Act. The accused was interviewed and observed. The People asked permission to review the accused’s medical and psychiatric record but the trial court denied the People’s request.

During the risk assessment hearing, the court was informed that the accused may be classified as a risk-level one offender. A New York Sex Crimes Lawyer said the People asked the court to reconsider its findings and to modify the classification of the accused as a risk-level-one offender. The People argued that given the accused’s many psychiatric illnesses, he should be classified as risk-level-three. His psychiatric deficiencies render him unable to control his impulses and may commit a similar rape in the future. The court denied the People’s request for a reclassification of the accused as risk-level three offender.

The People appealed the court’s determination. The only question before the Court is whether or not the trial court erred in classifying the accused as a risk-level one offender under the Sexual Offender Registration Act (SORA).

The Court held that under the SORA, the accused and the People are both given the opportunity to present evidence and to be heard on the issue of determining the risk level of the accused. Both the accused and the District Attorney can appear and also be given access records, materials from any hospital, office or agency to give the court all the opportunity to make an accurate determination of the risk the offender poses to society in general just in case he may have the propensity or tendency to commit the same sexual offense he had been convicted of.

A Nassau County Sex Crimes Lawyer said the court then erred when it denied the People’s request to have access to the psychiatric reports and psychiatric records of the accused when he was evaluated and when he was confined under the custody of the Commissioner of Mental Health. This was a right of the People guaranteed to it under the SORA. The express mandate of the law overrides the privacy concerns of the accused especially when the safety and health of society in general is at stake if an accused is likely to commit a similar sexual offense in the foreseeable future.

The Court reversed the order of the trial court and the People’s request for leave to have access to the psychiatric records of the accused is granted. A Queens Sex Crimes Lawyer hearing and new determination of the risk level of the accused is ordered.

Are you charged with rape? A Suffolk County Rape Lawyer can represent you at trial and at a risk-level hearing. A Suffolk County Rape attorney can help you present evidence to show that you are not likely to commit the same sexual offense in the future. At Stephen Bilkis and Associates, their Suffolk County Rape attorneys are ready and available for consultation. Call Stephen Bilkis and Associates today and ask to speak with any of their Suffolk County Rape lawyers so he can explain to you the nature of the charges against you, help you present a valid legal defense and present evidence at a risk-level hearing.

October 23, 2012

Court Discusses Lesser Included Offenses

In this case, the Appellants were charged with informations of robbery and convicted of grand larceny. Since the informations contained no allegation of the value of the stolen property, the court reversed the conviction and remanded the case for entry of judgments of petit larceny only.

A New York Drug Crime Lawyer said during the trial of the case, the evidence showed that the value of the property taken was over $100. The judge instructed the jury on robbery and the lesser included offenses of grand larceny and petit larceny. Immediately after the jury retired, the appellants objected to the charge of grand larceny.

In the case of Brown v. State, Fla.1968, 206 So.2d 377, lesser offenses were divided into four categories:

(1) Crimes divisible into degrees;
(2) Attempts to commit offenses;
(3) Offenses necessarily included in the offense charged; and
(4) Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence.

In the case of State v. Anderson, Fla.1972, 270 So.2d 353, the court held that an instruction on a category (4) offense should not be given unless the accusatory pleading alleges all the elements of the lesser offense, to wit:

A New York Criminal Lawyer said the accusatory pleading must apprise the defendant of all offenses of which he may be convicted. This simply means that when the State makes a charge, ex parte though it may be, it is asserting that the defendant is guilty and may be convicted of that offense, all degrees thereunder when the offense is divided in degrees, the attempt to commit the offense, and any lesser offense which is an essential ingredient of the major crime charged.

In addition, it means that he may be convicted of any lesser offense, which, although not an essential ingredient of the major crime, Is spelled out in the accusatory pleading in that it alleged all of the elements of the lesser offense and the proof at trial supports the charge. . . . (Emphasis supplied.)

It is well-settled jurisprudence that Larceny is a necessarily included offense in the crime of robbery. However, grand larceny contains an element not present in the offense of robbery: that the value of the property stolen was one hundred dollars or more. Grand Larceny is not necessarily included in the offense of robbery, and jurisprudence requires that the accusatory pleading allege this additional element of value in order for a conviction of Grand Larceny to be sustained.

In accordance with the foregoing jurisprudence, Florida Standard Jury Instructions in Criminal Cases, Robbery, § 2.06 includes the following language:

Degrees of Larceny

A Queens Drug Crime Lawyer said if, from the evidence, you find beyond a reasonable doubt that the defendant did steal, take and carry away the property described from the person alleged in the information (indictment) but are not convinced beyond a reasonable doubt that the taking was accomplished by force, violence, assault or putting in fear you should find the defendant guilty of larceny, and

a. in this case the information (indictment) does not allege the value of the property to be one hundred dollars or more, so the verdict should find the defendant guilty of petit larceny.

The State argued that appellants waived this issue because the record fails to reveal a timely objection to the jury instructions. This case does not merely involve erroneous instructions. The defendants were convicted of a crime not charged in the informations. A Nassau County Drug Crime Lawyer said this is fundamental error as held in numerous cases, such as O'Neal v. State, Fla.App.2d 1975, 308 So.2d 569; Johnson v. State, Fla.App.2d 1969, 226 So.2d 884; Priester v. State, Fla.App.4th 1974, 294 So.2d 421.

Although the convictions of grand larceny cannot be sustained, petit larceny is an offense whose elements were alleged in the accusatory pleadings.

Upon review of the case, the court reversed the convictions and sentences for grand larceny and remanded the case with directions that judgments of conviction be entered against both appellants for petit larceny only.

Stephen Bilkis and Associates with its New York Petit Larceny Lawyers to fully support and argue your case. It can alleviate your plight by initially visiting any of its offices which are within New York Metropolitan area, including Corona, New York.

October 23, 2012

Court Rules on Heroin Possession Charges

In this drug offense case, defendant was found in his apartment with 6¼ grams of heroin about twenty to thirty minutes after a package containing 13 grams of heroin was delivered by mail to his apartment. Customs and postal inspectors had discovered the heroin in the package when it had arrived in the country at San Francisco. A New York Criminal Lawyer said the package was mailed from Thailand and addressed to defendant’s residence in Daytona Beach, Florida. The postal authorities arranged a controlled delivery of the package to defendant’s residence.

A Jacksonville Heroin Possession Lawyer said that, about twenty to thirty minutes after this controlled delivery had taken place, four officials, one a postal inspector, and another a customs agent, and the other two, Daytona Beach police detectives, entered defendant’s apartment under a valid search warrant. They found defendant in a bedroom with 6¼ grams of heroin on a coffee table in front of him. They conducted a search to find the remaining heroin. During this search, they found thirty packets of heroin, each wrapped in aluminum foil and containing a mixture which included approximately one milligram of heroin, in a drawer of a dresser in a bedroom across the hall from the room where defendant had been found. It was established at trial that these "dime bags” small packets wrapped in aluminum foil containing about one milligram of heroin are commonly used in passing heroin on the streets. The authorities also found some butts of marijuana cigarettes in the same bedroom drawer. While the authorities were searching the apartment, defendant remarked to them, referring to the thirty "dime bags", "I bet you didn't think I could package it up that quick".

A Jacksonville Intent to Distribute Lawyer said that, the indictment charged possession with intent to distribute only the 6¼ grams found on the coffee table. The Government relied upon the 30 "dime bags" to prove that defendant had the requisite intent to distribute. Its theory was that the heroin found in packages suitable for street distribution indicated that defendant was a dealer in heroin; that he had received the 13-gram package delivered in the mail for the purpose of selling or distributing most or all of the 13-gram quantity; and that he therefore intended to distribute the 6¼ gram quantity found on the coffee table.

A New York Criminal Lawyer said that, defendant advanced a different theory of the evidence at trial. He testified that he was himself addicted to heroin and that he intended to use the entire 13-gram quantity himself. He said that the 30 "dime bags" found in the drawer were not packaged with any heroin from the 13-gram package. He alleged that he had had that entire heroin on the coffee table in front of him at the time he heard that the police were coming; and that when he heard of their arrival, he had wadded up the tinfoil with the rest of the heroin on it and had thrown it into a corner of a closet. He explained the remark he had made about "packing it up that quick" by saying he had made it in order to deflect the authorities from their search before they found the wadded-up foil containing the remaining heroin.

Defendant’s first contention concerns the sufficiency of the evidence. He argues that the evidence was consistent with his theory that he was going to keep the heroin for his personal consumption; thus, he says, the jury "could not" have "excluded" this "hypothesis of innocence" as "unreasonable". This, he argues, means that the evidence was insufficient to support the verdict.

The issue in this case is whether the evidence used against defendant is insufficient to support his conviction.

The Court held that the argument is without merit, because it reflects a misunderstanding of the standard by which this Court reviews the sufficiency of the evidence to support a guilty verdict.
A New York Drug Possession Lawyer said the standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences there from failed to exclude every reasonable hypothesis other than guilty, but whether the jury might so conclude. As we understand it, the appellant's argument is only that his theory that he intended to use the heroin himself is but "one hypothesis of innocence", which he is suggesting might "satisfy this Court's sense of reasonableness"; but we have often held that this is not enough to permit us to reverse the verdict. We must uphold a guilty verdict if there is any "theory of the evidence from which the jury might have excluded every hypothesis except guilt beyond a reasonable doubt". Without recounting every piece of evidence leading to this conclusion, the Court concludes from our review of the evidence that this standard was met in this case.

The appellant's second contention is a dual one. He contends that the trial judge erred in admitting testimony (a) about the thirty packets of heroin found in the dresser drawer; and also (b) about the marijuana cigarette butts found in the drawer. Both, he argues, amounted to evidence of other crimes, and their introduction was therefore incurably prejudicial.

The Court disagrees. The evidence concerning the thirty packets of heroin was admissible to show intent, as we have already noted, and evidence of other similar crimes is admissible to show intent. The testimony concerning marijuana was not admissible to show intent, but its admission did not, in our view, constitute reversible error. A New York Sex Crimes Lawyer said the testimony was confined to two statements made by two of the participants in the search of defendant’s apartment. They amounted to no more than descriptions of what they saw in the bedroom drawer; they were mere statements of having observed the res gestae. Later in the trial, when the Government sought to introduce the marijuana butts as an exhibit, and to have a chemist testify that the substance had been chemically identified as marijuana, the trial judge excluded the exhibit and instructed the jury to disregard the chemist's testimony concerning marijuana. In this state of the record, we cannot hold that the brief allusions to marijuana in the testimony of the customs agent and police detective who searched the apartment were sufficiently prejudicial to require a new trial.

The principal objection to the charge to the jury concerns the trial judge's instruction that: if you should find, beyond a reasonable doubt, that the Defendant had knowing and intentional possession, as charged, the fact of such possession alone, of a large quantity and/or quality of heroin, unless explained to the satisfaction of the jury, by the evidence in the case, permits, but does not require the jury to draw the inference and find that the heroin was possessed with intent to distribute. The appellant notes that there is no authority for permitting an inference of intent to distribute merely from the fact of possession of heroin of a high quality alone, and that this instruction, read literally, would authorize just such an inference. He argues, therefore, that the trial judge committed reversible error in giving this charge.

The Court cannot escape the obvious: the quality of the drugs possessed, in conjunction with the quantity, is relevant to the inference to be drawn from possession of a large quantity. Possession of six grams of 99.5% pure heroin the purity of the heroin found in defendant’s possession obviously supports more strongly an inference of intent to distribute than does possession of heroin of, say, 5% purity. Here, the evidence was sufficient to establish that the heroin defendant possessed, given its quality and quantity taken together, was worth $60,000 on the street. The Court concludes that it was highly unlikely that, in the circumstances of this particular case, the effect of the instruction was to lead the jurors into thinking they could infer intent from the quality of the heroin alone. The Court finds no "strong probability that the instructions `taken as a whole were such as to confuse or leave an erroneous impression in the minds of the jurors'". The Court therefore finds that the particular instruction in question did not constitute reversible error. The appellant also objects to the sequence in which the judge's instructions were given, arguing that it tended to confuse the jury on the issue of intent, and to the failure of the trial judge to give a literal definition of intent. The Court finds these objections without merit. Accordingly, the Court held that judgment is hereby affirmed.

Heroin possession is a serious crime that may put you on jail for a long time. Seek for the legal advice of a Jacksonville Heroin Possession Attorney and Jacksonville Intent to Distribute Attorney in order to help you with your case. Jacksonville Drug Crime Attorney at Stephen Bilkis and Associates can handle your day in Court.

October 22, 2012

Court Looks at Elements of Burglary

Sometime on July 14, 1995 at 11:30 pm two police officers were in a police cruiser and they were parked with the headlights turned off. A New York Criminal Lawyer said they were observing two men outside an auto mechanic’s garage which was already closed for the night. The two policemen were observing two men who were circling around a parked Chevrolet outside the auto mechanic’s garage.

A little later, the two men took out tools from a tool box they carried and they started removing the hub caps and the lug nuts of the parked car. A while later they were able to remove all the four tires of the car. They took the tires and the hub caps and loaded these into the trunk of their own car. Before they could start their engine the police officers came towards them and declared them arrested.

At the police station, the police officers charged the men for burglary, for possession of tools for burglary and for burglary of a conveyance. The two men pleaded not guilty and they also filed a motion to dismiss the two charges for burglary and the possession of burglary tools.

Their motion to dismiss was denied and trial ensued. A Queens Criminal Lawyer said at the trial, the two accused did not bother to present evidence to contradict the evidence of the prosecution. Instead, the two accused produced evidence that tended to prove that given the circumstances of the case as these have been proved by the prosecution, the charges of burglary and of possession of burglary tools cannot be sustained. After the trial, the court gave instructions to the jurors that they can either acquit the two accused; or, find them guilty of grand theft; or, find them guilty of the included offense of petit theft.

The jury found the two men guilty of grand theft. To this, the two accused moved for a judgment of acquittal. This motion was also denied and the trial court sentenced the two accused to serve one year imprisonment for the burglary charge; another year for possession of burglary tools and the time that they had served was credited toward the penalty for the charge of petit theft.

The two accused appealed. A New York Sex Crimes Lawyer said their appeal hinges on their contention that no burglary could have been committed as they did not enter the car for the purpose of committing a crime. The only question before the District Appeals Court is whether or not the conviction for burglary and for possession of burglary tools can be sustained given the facts of the case proven at trial.

The Court held that burglary was defined by law as the crime committed when a person enters a dwelling place or a house with the intent of committing a crime. This was the old definition from common law and this has been adapted by the courts in Florida. Later in 1961, the law was amended: burglary was defined as the crime of entering a dwelling place, house or conveyance or motor vehicle for the purpose of committing a crime.
Here, the two accused did not enter the vehicle. They stripped the vehicle of its tires and hubcaps. They cannot be said to have entered the vehicle. They did not ride in the Chevrolet. They simply detached the hubcaps; they took a lug wrench and removed the tires of the car. These acts constitute the crime of larceny and not burglary.
The Court quashed the verdict of guilty and the decision of the jury and the case was remanded for further proceedings.
Were you charged with burglary? You need assistance from a Florida Criminal Lawyer who shall explain to you exactly what the elements of the crime of burglary are. A Florida Criminal Attorney can help raise the issue that the facts alleged by the prosecution o not constitute elements of the crime charged. Come and speak with any of the Florida Criminal Attorneys from Stephen Bilkis and Associates. The Florida Criminal Lawyers on staff at Stephen Bilkis and Associates are willing and ready to represent you.

October 22, 2012

Court Discusses Mental Hygiene Law

The complainant brought this action to recover damages for injuries he claims to have suffered as a result of being knocked down as he attempted to board a bus operated by the accused. At the time of jury selection, the complainant moved to preclude the accused from offering evidence of or in any way calling the jury's attention to the facts of the complainant’s incontestable past use of heroin and his current participation in a methadone treatment program. A New York Criminal Lawyer said at the jury coordinating part, the judge determined that the accused would be precluded from any reference to the complainant’s current use of methadone or his participation in the treatment program. He reserved to the trial judge the issue of whether the complainant’s past use of heroin was admissible in the liability phase of the trial.

Following jury selection and prior to opening, the court granted the balance of the complainant’s motion and precluded the accused from mentioning or offering any evidence of the complainant’s past use of heroin. Given that there is a paucity of reported case law regarding the admissibility of such evidence in civil proceedings, the court files the decision to memorialize its opinion.
A New York Criminal Lawyer said the motion does not question whether a complainant's use of heroin is admissible in the damages phase of a civil trial where the jury is assessing a variety of health and life issues relating to the complainant, such as life expectancy. In that context, with an appropriate foundation, testimony regarding the complainant’s heroin use would surely be admissible. Nor is it about whether the complainant was under the influence of heroin at the time of the accident so that his powers of perception or recollection might actually have been impaired by his heroin habit; nor whether the complainant was under the influence of heroin at the time of his testimony. The use of heroin by the complainant in those circumstances would be admissible even in the liability phase to impeach his credibility as a witness. Indeed, in all of those situations, proof of heroin use and addiction even by extrinsic evidence would be proper. The lone issue decided by the court on the branch of the motion reserved to it was whether the complainant’s past use of heroin was admissible as an act of moral depravity offered only to attack his credibility as a witness.

With the triviality of the advocacy dissipated, neither side could nor did take issue with the black letter rule which states that a witness may be examined with respect to specific immoral, vicious or criminal acts which have a bearing on the witness's credibility. A New York Drug Crime Lawyer said that founded on such rule, the accused opposed the preclusion arguing that the complainant’s heroin addiction and use over a long period of his life tended to establish moral depravity and, therefore, those acts were relevant and proper impeachment of his credibility as a witness. That same black letter rule, of course, acknowledges the power of the trial court to exercise discretion with respect to the nature and extent of bad act cross-examination. Over the accused person’s strong exception, the court exercised its discretion to preclude proof of the complainant’s addiction and use of heroin which, incidentally, would have included reference to the complainant’s hospital records if extrinsic proof of the claimed past bad acts became necessary.

A New York Sex Crimes Lawyer said there is little doubt that the complainant's heroin habit qualifies as a specific immoral, vicious and/or criminal act which could have a bearing on the complainant's credibility. The court, nonetheless, exercised its discretion to preclude the accused from offering such evidence or making such reference before the jury on two grounds. The first rests on the synergy of the proposed evidence with other evidence to be offered by the accused to impeach the complainant's credibility. Not unexpectedly for someone who, at a young age, ruined his entire life as a slave to heroin, the complainant has the extraordinary criminal record of a petty thief and drug abuser. Among the many, but hardly exhaustive of them, some 30 criminal convictions, including two for criminal possession of a controlled substance, were to be (and were) offered to impeach the complainant's credibility. In this context, the proposed use of the complainant's heroin habit to attack his credibility further either in argument or by confrontation on the stand was determined by the court to be both cumulative and highly prejudicial. Provident discretion impelled its preclusion.

Another ground is by logical extension of a judge’s prior determination that reference to the complainant’s participation in a methadone treatment program was to be precluded. Had the court denied the balance of the motion in limine (a motion made before the start of a trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in a trial), the complainant would have been presented with the choice of keeping the current participation in a methadone treatment program confidential, as the previous judge’s had ruled, but only at the expense of foregoing the opportunity to rehabilitate his credibility in the eyes of the jury by showing that he had given up his life of moral depravity for a life of new hope in treatment.

More importantly, the judge’s ruling relied on Mental Hygiene Law provides that notwithstanding any other provision of law including but not limited to the election law, no person's rights as a citizen of the United States or of the state of New York shall be forfeited or abridged because of such person's participation in chemical dependence programs, treatment facilities or services. Such participation shall include but is not limited to the certification as substance dependent of a person to the care and custody of the office under previously existing provisions of law. The fact, proceedings, application, or treatment relating to a person's participation in chemical dependence programs, treatment facilities, or services shall not be used against such person in any action or proceeding in any court.

Obvious from these words is the enactment by the Legislature of a strong public policy that participation in a drug treatment program is to be confidential and that no right shall be forfeited or abridged on account of program participation.

It is clear to the court, therefore, to give full intended effect to the strong public policy of New York State, that even if the past use of heroin were the only basis to attack the credibility of the complainant, his current participation in a methadone treatment program would preclude any reference to or offer of proof of past heroin use when offered solely for the purpose of impeaching his credibility on the grounds of his immoral, vicious or criminal acts of moral depravity. Accordingly, as a matter of public policy, a trial court in a civil action should exercise its discretion to preclude reference to or the offer of evidence regarding the past heroin use and addiction of a witness who is at the time of his testimony participating in a chemical dependency treatment program where such reference or offer is made solely to impeach the credibility of that witness.

For all the foregoing reasons, the complainant’s motion to preclude reference or the offer of proof by the accused, either extrinsically or directly, of the past use of heroin by the complainant for the sole purpose of impeaching his credibility on the witness stand was granted.

Our past will always play a role in our present and future that is why it is important that we live clean. Once we made a mistake, the society that we are in seldom gives a second chance even though we already suffered for the consequences of our wrongdoings. If you want to prove your innocence, consult the NY Drug Crime Lawyers together with the NYC Criminal Attorneys from Stephen Bilkis and Associates. When you are involved in a drug possession dispute, call the New York City Heroin Attorney.

October 20, 2012

Court Discusses Elements of Grand Larceny

On the night of the accident, a city police officer, while in his patrol car, stopped a man's automobile in the area where the breaking and entering had occurred. An officer with the sheriff's department saw a record player, a record player stand, assorted women's clothing, and a rifle in the rear of the man’s vehicle. After the man was arrested, he tried to hide some cuff links, a watch, a ladies' wrist watch, and other items.

The victim, whose home was broken into, identified several items in the man's automobile that had been stolen from her home, including a white sweater, a three-piece suit, a stereo, and a watch. She estimated the value of the said items.

A New York Criminal Lawyer said the man was tried for and convicted of the crime of breaking and entering with the intent to commit grand larceny. But appealed from the decision and sentence based upon a jury verdict.

Based on records, the jury was required to determine from the evidence the value of the property intended to be stolen and the conduct of the perpetrator while in the house. In addition, if the property stolen is of the value of $100 or more, the offender shall be guilty of grand larceny, which crime is punishable by imprisonment.

The basic question presented in the court for the determination of the man’s appeal is whether the evidence at the trial was sufficient to support the conviction, particularly the evidence of the value of the property which the man intended to steal.

The court cited previous case similar to the man’s case, where the perpetrator was also charged with breaking and entering a dwelling house. The person responsible to the crime was seen in, and leaving, the house. However, there was no evidence that he took anything and no evidence of the value of the contents of the house. In another case, a man was also convicted with the same matter. A witness testified that the man had told her that he had to see someone about a television set, and they subsequently entered a grade school building. Other witnesses saw two persons leaving the said building with a television set. A Queens Criminal Lawyer said the police arrived at the scene while the man was still there, and he fled and dropped the television set nearby. However, because of the insufficiency of the evidence to show the present value of the television set, the court reversed the judgment of conviction.

Consequently, the court stated that the proof about the stolen object was worth $115.55 when it was originally purchased two years earlier is not proof of its value at the time of theft. In this regard, the prosecutors might be well advised to consider using persons having knowledge of the value of used personal property in the market place as value witnesses to eliminate a defect in the evidence found by our courts over the years in the case.

As the proceeding came to an end, the court considered the following to be a fair statement of the rule established in the state on the present subject about the man’s charges. The essential element of the offense is his intent at the time of his breaking and entering to commit grand larceny that is to steal property of the value of $100 or more. While, a New York Sex Crimes Lawyer said in the absence of other evidence or circumstances, the best evidence of his intent is what he did steal, nevertheless, his said intent may be proven by such other evidence or circumstances.

As a result, the decision appealed is reversed and the cause is remanded with directions to enter a judgment of conviction of the lesser included offense of breaking and entering with intent to commit petit larceny, and with directions to re-sentence the man accordingly.

Because of the financial crisis we are all facing, some people will do anything just to obtain money. If you’ve been a victim of theft or robbery, you can ask legal assistance from the NY Grand Larceny Lawyer or NYC Petit Larceny Attorney. Similarly, your family can also ask legal guidance from the ever reliable team of New York City Criminal Lawyers at Stephen Bilkis and Associates.

October 20, 2012

Court Decides if 3 Petit Larceny Convictions Amounts to a Felony

In this case, the Appellant sought review of the sentences imposed based upon inaccurate sentencing guidelines scoresheet, and a written probation order that included a condition which was not pronounced orally at the sentencing hearing.

The court reversed the sentence imposed and remanded the case for resentencing.

A New York Criminal Lawyer said the predicate offenses, kidnapping and armed robbery with a weapon, were committed June 8, 1990. The guidelines scoresheet used at sentencing shows a total of 316 points, for a recommended sentencing range of twelve to seventeen years, and a permitted sentencing range of nine to twenty-two years. The trial court imposed a sentence of twenty years on the kidnapping conviction, and a probationary term of twenty years on the armed robbery with a weapon conviction. The probation was to be served consecutively to the kidnapping sentence.

Appellant argued that the guidelines scoresheet relied upon by the trial court was inaccurate with regard to points assessed for legal constraint, scoring a New York petit larceny conviction as a felony, and assessing points for six rather than five prior misdemeanors, and asserts error with respect to the written condition of probation. A New York Drug Possession Lawyer said the state agrees the written probation order must be conformed to the oral pronouncement, but rejects the challenges to the accuracy of the scoresheet.

With regard to the assessment of legal constraint points based upon legal status at the time of the offense, the Category 9 scoresheet applicable to this case designates assessment of twenty-four points if the offender was under legal constraint when the convicted offenses were committed. A New York Criminal Lawyer said the scoresheet used at sentencing scored forty-eight points for legal constraint, presumably based upon two New York "failure to appear" capiases dated 1985 and 1989.

Appellant challenged these legal constraint points on the following grounds: that the predicate charge underlying the 1989 failure to appear capias had been withdrawn; and the existence of the legal status was based upon hearsay obtained from the presentence investigation report, which had not been verified.

Jurisprudence dictates that the legal status points may be scored if, at some time prior to the convicted offense, the offender had failed to appear for a criminal judicial proceeding. If an accused challenges the accuracy of his prior record, both on hearsay grounds and as to the correctness of the information, the state is required to provide further corroboration. However, where the objection to prior convictions on a rap sheet is predicated solely on hearsay, with no dispute as to their truth, the state need not produce corroborating evidence. Still, "legal status points are to be assessed only once whether there are one or more offenses at conviction."

Appellant argued that the 1989 failure to appear should be deleted, because the victim withdrew the predicate charges. Even if legal constraint points ought not be assessed when the underlying charge has been withdrawn, appellant has not disputed the 1985 legal constraint. The failure to challenge the truth of the legal constraints obviated the state's obligation to produce corroborating evidence beyond that shown on the prior record.

Nevertheless, the court held that it was error to apply a multiplier to the scoresheet legal constraint points. Application of a multiplier to assess legal constraint points for each convicted offense is improper. A New York Sex Crimes Lawyer said the court also ruled that the prohibition against multiplying legal status points by the number of offenses at conviction is also applicable to the number of legal constraints reflected in the prior record. Upon remand, no more than twenty-four legal status points may be scored.

Appellant's second scoresheet challenge was directed to scoring a New York petit larceny conviction as a third-degree felony. Jurisprudence dictates that out-of-state convictions are to be "assigned the score for the analogous or parallel Florida statute." Fla.R.Crim.P. 3.701 d.5(a)(2). The state does not dispute that under New York law, petit larceny is a misdemeanor. Since there is a notable absence in the record of the three prior petit theft convictions required to raise a petit theft conviction to a third-degree felony, the court ruled that it was improper to score the New York petit larceny conviction as a felony. Upon remand, this conviction must be scored as a misdemeanor.

With respect to the argument regarding the written probation condition that was not pronounced orally at sentencing, the state agrees with Appellant that the written probation order requiring payment of $1.00 per month to First Step, Inc. of Bay County must be conformed to the oral pronouncement at the sentencing hearing.

The court reversed the sentence imposed and remanded the case for resentencing pursuant to a corrected scoresheet, and for conformance of the written probation order with the oral pronouncement.

Stephen Bilkis and Associates with its New York Petit Larceny Lawyers are knowledgeable to handle and argue your case. It has convenient offices within New York Metropolitan area, including Corona, New York.

October 19, 2012

Court Discusses Due Process Clause

In this criminal case, petitioner fired several shots into the home of an African-American family and made a statement which he later retracted that he did not want the family in his neighborhood because of their race. A New Jersey Criminal Lawyer said that, he was charged under New Jersey law with, second-degree possession of a firearm for an unlawful purpose, (possession of a weapon), which carries a prison term of 5 to 10 years. The count did not refer to the State's hate crime statute, which provides for an enhanced sentence if a trial judge finds, by a preponderance of the evidence, that the defendant committed the crime with a purpose to intimidate a person or group because of, inter alia, race. After petitioner pleaded guilty, a New York Criminal Lawyer said that the prosecutor filed a motion to enhance the sentence. The court found by a preponderance of the evidence that the shooting was racially motivated and sentenced petitioner to a 12-year term on the firearms count. In upholding the sentence, the appeals court rejected petitioner’s claim that the Due Process Clause requires that a bias finding be proved to a jury beyond a reasonable doubt. The State Supreme Court affirmed.

The issue in this case is whether petitioner has been denied of his right to due process.
The Court held that the Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt.

The answer to the narrow constitutional question presented whether petitioner’s sentence was permissible, given that it exceeds the 10-year maximum for the offense charged was foreshadowed by the holding in one of the cases decided by the Supreme Court, that, with regard to federal law, the Fifth Amendment's Due Process Clause and the Sixth Amendment's notice and jury trial guarantees require that any fact other than prior conviction that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt. The Fourteenth Amendment commands the same answer when a state statute is involved. The Fourteenth Amendment right to due process and the Sixth Amendment right to trial by jury, taken together, entitle a criminal defendant to a jury determination that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. The historical foundation for these principles extends down centuries into the common law. A Staten Island Criminal Lawyer said while judges in this country have long exercised discretion in sentencing, such discretion is bound by the range of sentencing options prescribed by the legislature. The historic inseparability of verdict and judgment and the consistent limitation on judges' discretion highlight the novelty of a scheme that removes the jury from the determination of a fact that exposes the defendant to a penalty exceeding the maximum he could receive if punished according to the facts reflected in the jury verdict alone.

The Pennsylvania case was the first case in which the Court used "sentencing factor" to refer to a fact that was not found by the jury but could affect the sentence imposed by the judge. In finding that the scheme at issue there did not run afoul of petitioner’s strictures, this Court did not budge from the position that (1) constitutional limits exist to States' authority to define away facts necessary to constitute a criminal offense, 477 U.S. at 85-88, and (2) a state scheme that keeps from the jury facts exposing defendants to greater or additional punishment may raise serious constitutional concerns, 477 U.S. at 88. In another case in which the Court upheld a federal law allowing a judge to impose an enhanced sentence based on prior convictions not alleged in the indictment represents at best an exceptional departure from the historic practice.
In light of the constitutional rule expressed here, the Court held that the New Jersey's practice cannot stand. It allows a jury to convict a defendant of a second-degree offense on its finding beyond a reasonable doubt and then allows a judge to impose punishment identical to that New Jersey provides for first-degree crimes on his finding, by a preponderance of the evidence, that the defendant's purpose was to intimidate his victim based on the victim's particular characteristic. The State's argument that the biased purpose finding is not an "element" of a distinct hate crime offense but a "sentencing factor" of motive is nothing more than a disagreement with the rule applied in this case. Beyond this, the argument cannot succeed on its own terms. It does not matter how the required finding is labeled, but whether it exposes the defendant to a greater punishment than that authorized by the jury's verdict, as does the sentencing "enhancement" here. A New York Sex Crimes Lawyer said the degree of culpability the legislature associates with factually distinct conduct has significant implications both for a defendant's liberty and for the heightened stigma associated with an offense the legislature has selected as worthy of greater punishment. That the State placed the enhancer within the criminal code's sentencing provisions does not mean that it is not an essential element of the offense.

Accordingly, the Court held that the judgment is reversed and the case is remanded.

Every person charged of a crime is entitled to due process of law. If you feel that your right has been violated, seek the advice of a New Jersey Criminal Attorney and/ or New Jersey Petit Larceny Attorney in order to defend your case. New Jersey Grand Larceny Attorney will help you. Call us at Stephen Bilkis and Associates for free consultation.

October 19, 2012

Court Discusses Impeachment with Evidence of Prior Conviction

This case is about an appellant who was adjudicated guilty, after a jury trial, for inciting a riot under Section 870.01(2), Florida Statutes (1981). Appellant argued that the evidence presented by the prosecution was insufficient to support his conviction. Although the sufficiency of the proof presented a close question, after thorough review, the court held that the State did present a prima facie case and that a judgment of acquittal was not required.

A New York Criminal Lawyer said the case however was reversed on the ground of evidentiary rulings as to prior convictions. The question concerns the impeachment of appellant under Section 90.610, Florida Statutes (1981), on the basis of two prior petit larceny convictions. The trial court ruled that these prior petit larceny convictions could be used for impeachment purposes and threatened to hold appellant in contempt if he took the stand and testified that he had not been convicted of a crime. Appellant did testify and on direct examination stated he had been convicted of a crime twice.

The old rules on Evidence provide that a witness was subject to being impeached with evidence of a prior conviction of any crime, excluding violations of a municipal ordinance. Jurisprudence prior to the amendment of the rules established that "a crime is a crime". The argument that discrediting crimes must involve moral turpitude was expressly rejected.

Section 90.610, Florida Statutes (1981), as amended, now provides:

90.610 Conviction of certain crimes as impeachment.--

(1) A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment, with the following exceptions:

(a) Evidence of any such conviction is inadmissible in a civil trial if it is so remote in time as to have no bearing on the present character of the witness.

(b) Evidence of juvenile adjudications are inadmissible under this subsection.

(2) The pendency of an appeal or the granting of a pardon relating to such crime does not render evidence of the conviction from which the appeal was taken or for which the pardon was granted inadmissible. Evidence of the pendency of the appeal is admissible.

(3) Nothing in this section affects the admissibility of evidence under s. 90.404 or s. 90.608.

A New York Criminal Lawyer said the foregoing amendments are identical with Federal Rule which has been uniformly interpreted as requiring that a conviction may not be used for impeachment purposes unless the prosecution demonstrates that the offense involved more than mere stealth. Elements of deceitfulness, untruthfulness, or falsification have been held necessary before the offense is relevant to credibility.

Jurisprudence dictates that when a statute is amended, the legislature intended the amended statute to have a meaning different from that accorded to it before the amendment. Further, if a Florida statute is patterned after a federal law on the same subject, it will take the same construction in the Florida courts as its prototype has been given in the federal courts.

In light of these principles of statutory construction and the uniform construction given to Federal Rule of Evidence 609 by the federal courts, it can be concluded that the Florida Legislature intended a like interpretation for § 90.610(1), Florida Statutes (1978). Therefore, a New York Drug Possession Lawyer said the court held that the simple crime of petit larceny may not be used for impeachment purposes unless the prosecution has demonstrated that such crime involves some element of deceit, untruthfulness, or falsification bearing upon the defendant's capacity to testify truthfully.

The court also ruled that the trial court erred in ruling that appellant's prior petit larceny convictions were admissible for impeachment without first requiring the prosecution to demonstrate that appellant's prior convictions were crimes of dishonesty within the meaning of Section 90.610, Florida Statutes (1981). A New York Sex Crimes Lawyer said in the face of an objection from defendant the state should have been required to go forward with proof as to the nature of the prior misdemeanor convictions.

The appellant's conviction was vacated and the matter remanded for new trial.

Our New York Petit Larceny Lawyers from Stephen Bilkis and Associates could establish your rights enshrined in the statute. It has convenient offices within New York Metropolitan area, including Corona, New York.

October 18, 2012

Defendant Says Court Failed to Instruct the Jury Properly

Appellant was charged with and convicted of robbery of property having a value of less than $100. He raises four points on appeal, one of which requires discussion and reversal. A Palm Beach Petit Larceny Lawyer said that, although the evidence presented at trial would have supported a conviction of petit larceny, appellant's request for a jury instruction on that crime was denied. In a 1979 case, the Court held that larceny is necessarily included in the crime of robbery and that it is legally impossible to prove robbery without proving larceny.
The issue in this case is whether appellant is entitled to the reversal of his conviction for robbery.

The Court held that the Florida Rule of Criminal Procedure 3.510 expressly requires the trial court to charge the jury on any offense which is necessarily included in the offense charged. Appellee concedes it was an error not to do so, but argues the error was harmless. The Supreme Court held that it is reversible error per se not to instruct on the next immediate lesser included offense, while it may be harmless error not to instruct on an offense two steps removed from the offense charged. In reference to the charge sub judice "the determination of whether the refusal to instruct on larceny was reversible error would depend upon an application of the case to the facts of what transpired in the trial court." Here, a New York Criminal Lawyer said there was neither charge nor evidence of property having a value of $100 or more. Consequently, petit larceny was the next immediate lesser included offense and the trial court committed reversible error when it failed to instruct on said crime.

The Court disagrees with appellee's argument that the trial court's failure to instruct on petit larceny was harmless error because the jury was charged as to attempted robbery, which appellee contends was one step removed from the crime charged. The "one step" test in the cited case, applies to necessarily included offenses as that category is described in a 1968 case, and Florida Rule of Criminal Procedure 3.510. Attempts are a category separate from necessarily included offenses in the foregoing rule as well as in the 1968 case. The Court notes in that case that the Supreme Court has tentatively agreed with the recent recommendations made by the Committee on Standard Jury Instructions in Criminal Cases to consolidate the four categories of lesser included offenses articulated in the 1968 case into two. A Suffolk County Criminal Lawyer said the distinction will still be made between offenses necessarily included in the offense charged, which will become category one, and attempts, which will be part of the other category. In the Matter of the Use by the Trial Courts of the Standard Jury Instructions in Criminal Cases and the Standard Jury Instructions in Misdemeanor Cases, Sub judice the charge was properly given on the separate offense of attempted robbery, but this did not cure the harmful error in not also charging on the necessarily included offense of larceny.

The Court adheres to its original opinion but certify the following question to the Supreme Court of Florida pursuant to Fla.R.App.P. 9.030(a)(2)(A)(v) as being of great public importance: If a defendant is convicted by overwhelming evidence of a greater offense, and the jury is instructed on an attempt to commit that offense, is the failure to instruct on the next lesser included offense, which carries a penalty less than the attempt, harmless error? In addition, the Court holds that appellant's first point; namely, the trial court's failure to give jury instructions on penalties, is further ground for reversal.

Accordingly, the Court held that the judgment of conviction is reversed and remanded for new trial.

The Florida Rule of Criminal Procedure 3.510 expressly requires the trial court to charge the jury on any offense which is necessarily included in the offense charged. If you have been convicted of a crime of petit larceny, sex crimes or drug offense, you will need the help of Stephen Bilkis and Associates.

October 18, 2012

Court Discusses Elements of Petit Theft

This case is about an appeal filed by a juvenile from an adjudication of delinquency for robbery and a subsequent commitment to the Florida Department of Health and Rehabilitative Services.

A New York Criminal Lawyer said the central question presented for review is whether the state established a prima facie case that the respondent juvenile employed force, violence, assault or putting in fear--an essential element of robbery--in effecting a theft of jewelry from a three-year-old child.

The respondent was charged in a petition for delinquency before the Circuit Court for the Eleventh Judicial Circuit with the offense of robbery.

At the trial, the complainant did not testify because she was only three years old and was not a competent witness. Instead, the state called two witnesses: the child's mother, the investigating detective in this case.

The child’s mother testified that on November 6, 1984, she was outside her apartment building in Miami watching her child, playing about twenty feet away with the respondent, a sixteen-year-old boy. A New York Criminal Lawyer said during the diversionary game, respondent (1) gently unclasped and removed a necklace which complainant had around her neck, and (2) removed a bracelet from complainant’s wrist by using a sudden pulling motion to break the thread that held the bracelet together. The child was never hit, pushed, or physically harmed during this encounter. As soon as the bracelet was removed, the complainant started to cry, ran to her mother, and touched her wrist indicating that she no longer had her bracelet.

Respondent then fled, but was arrested several days later after the police were notified of the incident. The investigating detective testified at trial as to the arrest as well as to the identification of respondent. The necklace and bracelet were never recovered, and no value was ever assigned to this jewelry at trial.

Based on the aforesaid evidence, the respondent moved for a judgment of acquittal as to the robbery charge on the ground that the state had failed to establish an essential element of robbery, namely, that the taking of the necklace and bracelet was by force, violence, assault, or putting in fear. The trial court denied the motion.

The court held that the state established only that the respondent committed a petit larceny from the person of the young child in this case when respondent removed the necklace and bracelet from the child's person--but that no prima facie showing was established below that this taking was accomplished by "force [or] violence" or by "assault or putting in fear," an essential element of robbery under Section 812.13(1), Florida Statutes (1983).

During the incident, the child was not verbally threatened, pushed, or physically harmed in any way. Given this evidence, no robbery was established.

A New York Drug Possession Lawyer said the court observed also that only a slight degree of force was employed in this pulling motion, enough only to snap a thread which held the bracelet together. There was no struggle over the bracelet, and the child was in no way injured; moreover, the snatching occurred during a diversionary child's game in which the child was not even aware of the taking until after it was accomplished. Under well-settled principles of Florida law, as stated above, this sudden snatching of the bracelet cannot constitute a taking by "force" within the meaning of our robbery statute.

As for the taking of the necklace, it is equally plain that only a slight degree of force was used to effect this theft--enough to unclasp the necklace from behind the child's neck--while the diversionary game was going on. This surreptitious theft was akin to a pickpocket, and, under well-settled principles of Florida law, cannot constitute a taking by "force" within the meaning of our robbery statute.

In sum, the state failed to establish an essential element of robbery under Section 812.13(1), Florida Statutes (1983)--namely, that the taking of the jewelry herein was by "force, violence, assault or putting in fear". A New York Sex Crimes Lawyer said the court reversed the delinquency adjudication for robbery under review. The state's evidence, however, established a prima facie case of petit theft under Section 812.014(1), (2)(c), Florida Statutes (1983)--and, accordingly, the court reduced the delinquency adjudication herein to petit theft and affirm the commitment order under review as a proper sanction for this reduced offense.

Accordingly, the criminal robbery adjudication under review was reversed, and reduced to petit theft, and the commitment order under review was affirmed being a proper sanction for petit larceny.

Stephen Bilkis and Associates with its New York Criminal Lawyers can alleviate the burden you are suffering. It has offices strategically located within New York Metropolitan area, including Corona, New York.

October 17, 2012

Appellate Court Agrees Prejudicial Error Committed at Trial

In this criminal case, defendant was convicted by a jury on three counts of willful attempt to evade or defeat his federal income tax due for the years 1970, 1971 and 1972, in violation of 26 U.S.C. § 7201. He was sentenced to one year imprisonment on each count, the sentences to run concurrently, and a $5,000 fine on each count. A New York Criminal Lawyer said the issues raised by defendant on appeal can be grouped into three categories: (1) government misconduct before the grand jury; (2) Jencks Act material; and (3) introduction of a 16-year-old military conviction for larceny.
The issues in this case are whether the issues raised by the defendant on his appeal that was grouped into three categories have merit.

The Court held that it finds no merit to the claims under the first two headings but concludes that it was prejudicial error to admit the military conviction into evidence. We reverse and remand.

I. Government misconduct before the grand jury

A. False statements

While testifying before the grand jury, special agent of the IRS made three statements which defendant says were false, known to the government to be false, and material. In a 1974 case decision by the Court of Appeals (CA9, 1974), defendant urges that the government had a constitutional obligation to inform the court, counsel and grand jury about the statements and that its failure to do so requires dismissal of the indictment. In the said case, a New York Criminal Lawyer said the Ninth Circuit held that the Due Process Clause of the Fifth Amendment is violated when a defendant has to stand trial on an indictment which the government knows is based partially on perjured testimony, when the perjured testimony is material, and when jeopardy has not attached. Whenever the prosecutor learns of any perjury committed before the grand jury, he is under a duty to immediately inform the court and opposing counsel and, if the perjury may be material, also the grand jury in order that appropriate action may be taken.

A subsequent Ninth Circuit opinion, has not only cut back on the reach of the 1974 case, but has also questioned its continuing validity. This court has never decided whether to adopt the constitutional rule laid down in the 1974 case. Nor do we decide that issue today. A prerequisite to the applicability of the 1974 case rule is a finding that the government witness perjured himself. In the case before us the district court, doubtful whether there were any misstatements, concluded that, if there were, there was no evidence that the special agent "deliberately attempted to mislead, certainly no evidence of perjury," a finding that can be reversed only if clearly erroneous. A New York Drug Possession Lawyer said the Court’s review of the special agent’s grand jury testimony supports the district court's conclusion. Absent a finding that perjury was committed; there is no basis for dismissing the indictment.

Appellant’s argument in the 1974 case fails in a second respect. In the sense that they were about collateral matters, the special agent’s alleged misstatements were not material. The statements in question revolve around the agent's testimony concerning a recorded interview he had conducted with then the defendant. The special agent testified that the defendant's "only explanation" why his bank accounts " far exceeded his gross income from all known sources" was that he had accumulated a large sum of money from dealing in currency exchange while stationed with the Air Force in Turkey. The transcript of the interview indicates that defendant presented several explanations for the accumulated money in his bank accounts. Defendant claims that the statement limiting his explanation to currency dealings was material because in a tax fraud case based on net worth computations the government must investigate and negate taxpayer explanations for cash on hand at the beginning of the computation period in order to establish a definite opening net worth, Assuming that the Holland rule for net worth computation trials is applicable to the government's presentation of its case to the grand jury, the government's case against defendant was computed on the premise that at the beginning of the government's computation period he had on hand the $55,000 cash hoard he claimed to have. The "one explanation" statement was, therefore, not material to the government's net worth computations.

The second statement made by the special agent that may have been misleading, because it was unresponsive, was in answer to a grand juror's question concerning the defendant's prior military conviction. Juror: Was that for the currency dealings he was convicted? Witness: He had several things going, currency exchange was part of it.

The government concedes that the defendant was not convicted for Currency exchange violations but rather Military post-exchange violations. The Court concludes, however, that the above statement is not material to an element of a § 7201 offense. Defendant argues that this statement combined with the first statement leaves the impression that he created the currency exchange lead for the cash hoard because it is a difficult source to investigate and refute. This is too strained an interpretation of the evidence.

The final statement in question occurred while the special agent was testifying about defendant’s military career. He testified that he asked the defendant whether he was retired from the Air Force and recounted that defendant said "No". In fact, the special agent had asked the defendant whether he was retired from the Army. A "no" response to the Army question by the defendant was truthful, while a “no" response to the Air Force question was misleading.

A New York Sex Crimes Lawyer said according to defendant, the grand jury may have inferred that he was trying to lead the special agent away from discovery of his court-martial. Assuming that such an inference was drawn by the grand jury, it was not material to an element of the offense. Moreover, because defendant concedes that the grand jury was entitled to be informed of his court-martial, any increased prejudice caused by the manner of informing the grand jury must be slight and certainly not of constitutional proportions.
Thus, the Court agrees with the district court's conclusion that dismissal of the indictment is not justified, because perjury was not proved and because the statements lacked materiality to the offense. But the presentation of the case to the grand jury is hardly commendable. Why the prosecutor elected to use the special agent’s hearsay account of his interview with the defendant rather than use the verbatim transcript of the interview we do not know. Use of the transcript would have avoided the problems discussed in this portion of our opinion.
B. Improper remark
During the course of his grand jury testimony, the special agent remarked that the defendant was "caught with his hand in the cookie jar." Inflammatory remarks made by a prosecutor justify the dismissal of an indictment if the improper remarks so biased the grand jurors that their votes were based on their bias. The Court agrees with the district court that the remark was needless and improper. We also agree with the district court that the remark does not rise to constitutional proportions.
II. Jencks Act material
The special agent testified at the trial. After he testified defendant's counsel requested all Jencks Act material. The government submitted his reports to the district judge for In camera inspection. The district judge ordered production with the deletion of several portions of the report. The clearly erroneous standard of review applies to district court determinations of what material must be produced under the Jencks Act. The Court has examined the deleted portions of the special agent’s report and concludes that no error was committed in not ordering their production.
III. Admission of 16-year-old military conviction
The defendant testified, and on cross-examination the prosecution impeached his credibility by eliciting the fact of his prior military conviction for grand larceny. The defendant has raised several objections to this use of his prior military conviction. Because the Court concludes that under Fed.R.Evid. 609(b) the trial judge abused his discretion in admitting defendant’s 16-year-old conviction, we do not reach his other objections.
While stationed in Turkey, the Court said that defendant was convicted by general court-martial of five specifications of theft of Air Force Exchange merchandise. He was sentenced to two years hard labor, was released from military confinement June 31, 1961, and called to testify in October 1977. The prior conviction was therefore a little more than 16 years old when offered into evidence as measured by the standards of Rule 609(b). Accordingly Rule 609(b)'s standard of admissibility for convictions over 10 years old applies: Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
As originally presented to Congress, Rule 609(b) made inadmissible all convictions over 10 years old. Although Congress amended the Rule to allow for the use of prior convictions over 10 years old in some circumstances, the legislative history makes clear that "convictions over 10 years old will be admitted very rarely and only in exceptional circumstances." Rule 609(b) must be interpreted in light of the gloss Congress placed on the Rule's standard of admissibility. The Court concludes that by use of the term exceptional circumstances Congress intended the courts to take account of the need for using a prior conviction as an essential element of the probative value prejudicial effect balancing test mandated by Rule 609(b). The exceptional circumstances idea expressed in the legislative history responds to the "interests of justice" language of Rule 609(b).
The prior convictions of a witness may only be used by the jury to evaluate the witness's credibility. In spite of the legal rule limiting the use of prior conviction evidence to impeachment purposes, when the witness is the accused the evidence is subject to improper use. The jury may misuse the evidence by considering the defendant a person of criminal tendencies and, therefore, more likely to have committed the crime for which he is being tried, or if the prior conviction is similar to the new charges, the jury may misuse the prior conviction as evidence of guilt, or the jury may just be more willing to convict a person who already has been convicted for a different crime. When the prior conviction is for a crime distinct from the charges for which the accused is currently being tried, as in this case, the potential for jury misuse of the evidence decreases. Nevertheless, potential prejudice arising from the criminal tendency inference and the jury's willingness to convict an already once convicted person remains quite real.
We now turn to the probative value portion of Rule 609(b)'s equation. The probative value of a prior conviction is a function of at least two factors, the nature of the past crime and the remoteness of the conviction. Crimes involving dishonesty or false statement are often more probative of the witness's lack of credibility than even more serious crimes involving violence. Rule 609(a) incorporates this distinction between types of crimes. Whether this defendant's military conviction was for a crime involving dishonesty or false statement is a matter of dispute between the parties. On the view we take of this case, it is not necessary to resolve this dispute. Assuming that the military conviction was for a crime involving dishonesty, that is insufficient justification, by itself, for use of the prior conviction. The presumption against the use of an over-age conviction is not so weak that it falls before a finding that the prior conviction was for a crime involving dishonesty. A crime involving dishonesty is more likely to overcome Rule 609(b)'s presumption, but more than that bare conclusion must be shown.
In the context of admissibility of over-age convictions exceptional circumstances includes, though it is not limited to, the need of the party offering the evidence to use it. This concept of necessity is relevant to the district judge's evaluation of the probative value of the conviction. It is the incremental probity of the evidence that is to be balanced against its potential for undue prejudice. Thus, if the Government has a strong case on the intent issue, the extrinsic offense may add little and consequently will be excluded more readily. Therefore, when a party wishes to use an over-age conviction, the trial judge must consider whether the witness already has been impeached, and if so, the probative value of the prior conviction decreases accordingly.
In this case nothing suggests exceptional circumstances justifying the use of defendant’s prior conviction. The defendant's credibility had already been well impeached by the government's cross-examination during which he had been caught in various contradictions and numerous misstatements. There was little need to add the icing of his military conviction. The district court mentioned that on direct examination defendant had testified to his accumulation of a cash hoard during his military career, and, of course, the court-martial for stealing occurred during his military service. Possibly the court considered the conviction as bearing on the credibility of defendant's claim that he had accumulated a cash hoard. If anything, the conviction of stealing at the time defendant claimed he was accumulating his cash hoard, bolsters his credibility with respect to a hoard rather than impeaches it. Absent some additional factor justifying the use of the prior conviction, there is no basis for concluding that it falls within the exceptional circumstances caveat to the general prohibition against the use of a conviction more than 10 years old.
The Court held that the government says the error was harmless. The Court cannot say that it did not influence the jury or that it had very slight effect. The government argues that defendant already had been caught in so many falsehoods on cross-examination that the additional blow could not have hurt. The Court agrees that he had been well impeached, and, because he had, there was no need for the prosecution to use the 16-year-old conviction. The right to use evidence of prior convictions to impeach is tempered by the need to use it. It would be anomalous indeed to conclude that the less the prosecutor needs the evidence the freer he is to use it. Accordingly, the Court held that the judgment is reversed.
Are you involved in a grand larceny crime similar to the above case? You need the help of Miami Grand Larceny Attorney and/or Miami Petit Larceny Attorney in order to explain to you the consequences of the crime that committed. Our Miami Criminal Attorney at Stephen Bilkis and Associates can represent you. Call us for free legal advice.

October 16, 2012

Appellant Claims Statute of Limitations Had Run

In this case, the Appellant raised on appeal his conviction on charges of conspiracy to commit a felony, to wit: grand larceny; and petit larceny. He was initially charged by information with grand larceny, conspiracy, and several counts of forging and uttering uniform air bills.

A New York Criminal Lawyer said the first information, filed on June 1, 1977, alleged that the offenses occurred between November 30, 1975 and June 14, 1975. The State filed a second information in open court on November 3, 1977, without objection from the defense counsel and with court approval. Thereafter, the appellant moved to dismiss the information on the ground that it had not been filed within the two-year Statute of Limitations. His motion was denied.

The informations alleged that Appellant was operating a kickback scheme with another person who worked for a company that provided air trays and livery service for transporting bodies by plane. A New York Criminal Lawyer said the accomplice entered a nolo plea to similar charges and turned State's evidence. During the trial, he testified that he made out false air bills with information given to him by Appellant, inflating the shipment costs. After the company paid the bill, the accomplice claimed that he delivered the excess money to appellant either in person or through a jointly held safety deposit box.

During trial, the court granted Appellant a judgment of acquittal on the forgery and uttering charges. However, The trial court found Appellant guilty of conspiracy to commit a felony, to wit: grand larceny; and petit larceny, sentencing him to one year probation, sixty days to be served in jail, and a $500.00 fine. A New York Drug Possession Lawyer said he was sentenced to sixty days in jail on the petit larceny conviction, to run concurrently with the sentence on the conspiracy conviction.

Thereafter, the appellant filed this appeal.

The appellant alleged that the motion to dismiss should have been granted because the two-year Statute of Limitations, in effect at the time of the commission of the crime, was applicable and not the three-year statute at the time of the filing of the
last information.

Upon a thorough review of the records of the case, the court did not subscribe to appellant’s contention. The basis for the court’s decision is enunciated in the cases of Mathis v. State, 31 Fla. 291, 12 So. 681 (1893); Walter Denson & Son v. Nelson, 88 So.2d 120 (Fla.1956); Calder v. Bull, 3 Dall. 386, 3 U.S. 386, 1 L.Ed. 648 (1798), wherein the time of the filing of the last information was extended. This doctrine was also reiterated in the cases of Corbett v. General Engineering & Machinery Company, 160 Fla. 879, 37 So.2d 161 (1948); Walter Denson & Son v. Nelson, supra; Mazda Motors of America, Inc. v. S. C. Henderson & Sons, Inc., 364 So.2d 107 (Fla. 1st DCA 1978).

The rule may be different when the Statute of Limitations is shortened, but that is not the issue in this case. A New York Sex Crimes Lawyer said the court examined the count of the information alleging the conspiracy and do not find it vague under the test set forth by the Supreme Court of Florida in Goldberg v. State, 351 So.2d 332 (Fla.1977). However, the court agreed that the trial judge was correct in refusing to entertain the motion, because it was untimely. This issue was certainly within his discretion. Appellant’s counsel further argued that a fundamental constitutional right cannot be waived; to which this court did not agree.

The other point raised by the appellant, which goes to the sufficiency of the evidence, is also without merit. Wetherington v. State, 263 So.2d 294 (Fla. 3d DCA 1972); Alleman v. State, 279 So.2d 382 (Fla. 3d DCA 1973); Abbott v. State, 334 So.2d 642 (Fla. 3d DCA 1976).

The court affirmed the adjudication of guilt and sentences thereon.

Stephen Bilkis and Associates with its New York Petit Larceny Lawyers can assist you in arguing your case. It has convenient offices located within New York Metropolitan area including Corona New York.

October 15, 2012

Appellate Court Reverses Grand Larceny Charges

In this case Appellant, defendant below, filed this appeal from a final judgment of conviction and a sentence of three years probation entered pursuant to a jury verdict finding him guilty of two counts of grand larceny. Our review of the record reveals that appellee, the prosecution below, did not show, as set forth in the information, that the property at the time it was stolen had a fair market value of $100 or more. Accordingly, a New York Criminal Lawyer said the judgment and sentence entered below are reversed and the cause is remanded with directions to the trial court to enter judgment and sentence on the lesser included offense of petit larceny.

Appellant was charged, by information, with three counts of grand larceny. The trial court granted a directed verdict of acquittal as to one of these counts. The remaining counts charged appellant with unlawfully and feloniously stealing hubcaps, valued at $100 or more, from the lawful custody of its owner. A New York Criminal Lawyer said pursuant to a three day trial, the jury returned a verdict of guilty on these two counts. Thereafter, the trial court entered a final judgment of conviction and a sentence of three years probation from which appellant brings this appeal.

Appellant contends that appellee failed to prove by competent substantial evidence, as to one of the counts, the ownership of the stolen property and, as to both of the counts, that the fair market value of the property was $100 or more at the time it was stolen.

Upon review of the record of the case, it revealed that, contrary to appellant's contention, appellee was able to show by competent substantial evidence the ownership of the property stolen. However, a New York Drug Possession Lawyer said the court joins in appellant's contention with regard to the proof of the value of the property stolen.

Established jurisprudence dictates that an essential element of the crime of grand larceny is the value of the property stolen, i. e., it must have had a fair market value of $100 or more at the time it was stolen, and the burden is on the state, here the appellee, to show the value.

The record reflects that, during the trial of the instant case, appellee questioned the owner victim about the fair market value of his hubcaps which were stolen. The owner of the hubcaps responded that he had inquired of a "hubcap dealer" about the value of the hubcaps and was informed that he could replace them with new ones for $130.00 including tax. Appellee then questioned the other victim owner and asked if she had made any inquiry in regard to replacing her hubcaps which were stolen. The other owner responded that she had called the "Cadillac place" and had ascertained their replacement cost to be from $47.50 to $65.00 per hubcap.

The court held that it is clear from the record that appellee failed to prove, as to each of the counts of grand larceny against appellant, the fair market value of the hubcaps at the time they were stolen as required by law; instead, appellee attempted to prove only their replacement value.

Where, as in the instant case, the proof fails to show the value necessary to constitute grand larceny, i. e., the fair market value at the time of theft, the defendant may not be convicted of the offense of grand larceny.

However, in this case, a New York Sex Crimes Lawyer said the proof was sufficient to establish the defendant's guilt for two counts of petit larceny which is a necessarily included lesser offense of grand larceny according to law.

Hence, the court reversed the judgment and sentence entered below and the case was remanded with directions to the trial court to enter judgment and sentence on the lesser offenses of petit larceny in accordance with Section 924.34, Florida Statutes (1975).

Stephen Bilkis and Associates with its New York Petit Larceny Lawyers can establish your rights under the law. It has offices strategically located within New York Metropolitan area.

October 14, 2012

Court Discusses Jury Instruction for Lesser Included Offenses

An accused man appeals his conviction for the offense of robbery with a deadly weapon, urging that the trial court erred in refusing to give requested jury instructions on the lesser included offenses of robbery with a weapon, robbery without a weapon, and petit larceny. A New York Criminal Lawyer said the court agrees with his position, reverse the conviction, and remand the case for new trial.

In declining to give the requested instructions, the trial court explained that there was no evidence to support an instruction on any crime other than that charged. The state argues that the lower court's decision was justified, as the court was not obliged to instruct on any lesser included offense as to which there is no evidence. What the state and the lower court have apparently overlooked, however, is that in any case in which there is sufficient proof of the greater offense to go to the jury, there is inescapably proof of a lesser offense which is necessarily included within the offense charged. The conclusion is self-evident from a reading of the Florida Supreme Court's seminal decision on lesser included offenses.

The facts reveal that the trial judge, whose order was there reviewed, fell into the same error as the court below by ruling that there was no proof to support a requested instruction that larceny was a lesser included offense to the charged offense of robbery. A New York Criminal Lawyer said in reversing the conviction, the Supreme Court explained that any lesser offense which is an essential aspect of the major offense is a necessarily included offense because the burden of proof of the major crime cannot be discharged, without proving the lesser crime as an essential link in the chain of evidence. Thus, in order to prove a robbery, the state must necessarily prove a larceny as an essential element of the major offense. This is so because every robbery necessarily includes a larceny.

In holding that an instruction was required as to lesser offenses necessarily included within the greater offense, the court based its decision largely upon the provisions of the Florida Statutes of 1965, which then mandated an instruction on any offense which is necessarily included in the offense charged. A New York Drug Possession Lawyer said in the court's view, the statute grants to the jury--not the judge--the discretion to convict an accused of a necessarily lesser included offense, notwithstanding that the evidence is so strong as to satisfy the judge that the greater offense was committed.

The requirement that the trial judge instruct the jury on necessarily lesser offenses was imposed in rule-form by the Florida Supreme Court's adoption of Florida Rule of Criminal Procedure, which went into effect on January 1, 1968. The rule was amended, effective October 1, 1981, by deleting the provision that the trial court charge the jury on any offense involving either attempts or necessarily included offenses within the offense charged. The rule's amendment does not, however, absolve the trial judge from his duty to instruct on necessarily lesser included offenses. The stated purpose of the amendment was simply to make it consistent with the newly adopted schedule of lesser included offenses which also went into effect on October 1, 1981. In its order, the court observed that the Rule and its predecessor statute had been interpreted to require instructions on attempts and on all lesser degrees of an offense, despite the absence of any evidence supporting the charges. Attempting to remedy the confusion which had attended those opinions, the court requested the committee on standard jury instructions in criminal cases to recommend a table of lesser included offenses, as well as modifications of the pertinent rules. While approving the recommended schedule of lesser included offenses, the court admonished that it did not view these changes as invasions by the trial judge into the province of the jury. It further observed that the approved changes will eliminate the need to give a requested lesser offense, not necessarily included in the charged offense, when there is a total lack of evidence of the lesser offense.

Thus, it clearly appears from the above comments that a trial judge is required to give instructions to the jury on all necessarily included lesser offenses to that charged, regardless of the degree of proof supporting the conviction for the higher offense. Indeed, the jury pardon concept, approved in a particular case, of allowing all necessarily included offenses to go to the jury, has been reiterated and endorsed by many later opinions of the Florida Supreme Court.

Whether the evidence is susceptible of inference by the jury that the accused is guilty of a lesser offense than that charged is a critical evidentiary matter exclusively within the province of the jury. Fundamental trial fairness requires that an accused being tried for robbery should be permitted to have an instruction on a lesser-included offense upon timely request.

In determining whether to give an instruction on a requested lesser offense, a trial judge should carefully consult the schedule of lesser included offenses contained in the Florida Standard Jury Instructions in Criminal Cases. A New York Sex Crimes Lawyer said the schedule is designed to be as complete a listing as possible for each criminal offense of the possible category 3 and category 4 lesser included offense. It is, moreover, an authoritative compilation upon which a trial judge should be able to confidently rely. Offenses necessarily included in the offense charged were regrouped in the schedule as category-one offenses, a category which will also include some lesser degrees of offenses. For the charged offense of robbery, the schedule lists under category one petit larceny, and refers to the committee's note on enhancement. Without question an instruction on petit larceny should have been given to the jury in the case below as an offense necessarily lesser included to that of robbery. The continuing vitality of a previous case’s rule is unchanged. It is impossible to prove robbery without proof of larceny.

In regard to the schedule's reference to the committee's notes on enhancement, one particular comment states that statutes providing for an enhanced penalty for certain crimes require, under such circumstances, an instruction on lesser statutory degrees of the offense. The court also find in the comment a reinforcement of the jury pardon concept that if an accused is charged with first degree burglary by virtue of having made an assault during the course of the burglary, the jury should be permitted to return a verdict for simple third degree burglary without the enhancement of the assault. Since robbery with a firearm or other deadly weapon is a first degree felony which carries an enhanced sentence of life imprisonment, then the lesser degrees provided for must be considered necessarily included offenses to the offense charged, regardless of the extent of evidence supporting the greater offense. Robbery with a weapon is a necessarily included offense to robbery with a deadly weapon despite the fact that the evidence submitted at trial clearly demonstrated that the robbery was committed with a firearm.

In that all the requested instructions involved lesser offenses necessarily included within the offense charged, the lower court was required to honor the requests, and because no instruction on any requested lesser included offense was given, the two-step removed the harmless error rule is inapplicable.

A crime victim does not only lose the things stolen or taken from them against their will. The criminal act also robs them of the chance to live a safe life. Trauma can be experienced by a person who experienced robbery and that person lose their trust to the people around them. If you want to feel safe again, consult the New York City Petit Larceny Attorney or the NYC Grand Larceny Lawyer. Stephen Bilkis and Associates can also provide you with a reliable NY Criminal Attorney to help you win your legal disputes.

October 13, 2012

Court Rules on Elements of Petit Larceny

By information the appellant was charged in one count with breaking and entering a dwelling with intent to commit a felony, aggravated assault, in violation of § 810.01 Fla.Stat., F.S.A., and in a second count with aggravated assault, in violation of § 784.04 Fla.Stat., F.S.A. a Miami Petit Larceny Lawyer said that, on trial before the court without a jury the defendant was acquitted on the latter charge, and on count one was found guilty of the lesser offense (§ 810.05 F.S.A.) of breaking and entering a dwelling with intent to commit a misdemeanor, to-wit, petit larceny. The defendant appealed from that conviction.

A New York Criminal Lawyer said the husband and his wife owned a residence as tenants by the entireties. They had separated, and he had not resided in the home for more than a year. His wife lived there with their three children. He retained a key to the home. For the purpose of obtaining evidence against his wife, he and the defendant, a private investigator employed by him, entered the home through the front door using his key. While there they placed and secluded an electronic transmitter in the master bedroom, and disassembled the lock to a sliding glass door which separated the bedroom from the outside. Shortly thereafter, on a certain date at 2:20 A.M., the defendant, acting on instructions from him, entered the residence through the unlocked glass door into the bedroom, and secured certain flash photographs of his wife and a man in bed there. It was brought out by testimony of the latter persons that the defendant did not demand or take anything of value from the premises. Their testimony that the defendant had and produced a gun at that time was contradicted.

A New York Criminal Lawyer said that, the trial court concluded the evidence was insufficient to prove aggravated assault, acquitted the defendant of that charge, and did not find him guilty of a lesser included offense thereof. Consistent with acquitting the defendant on the separate charge of aggravated assault, the trial court held that the charge of breaking and entering with intent to commit aggravated assault was not proved, incident to convicting the defendant on the lesser offense of breaking and entering with intent to commit petit larceny.

The issue in this case is whether the evidence against defendant was insufficient to sustain the conviction of breaking and entering with intent to commit aggravated assault, warranting his acquittal.

The Court held that, as contended for by the appellant, that the evidence was insufficient to sustain that conviction. It was clearly disclosed that the defendant's entry was for the planned and accomplished purpose of taking pictures such as those which were obtained, and further that the testimony of the prosecuting witness disproved the petit larceny intent. The Court view as unsound the contention of the state that the conviction should be upheld on the basis that the entry of the dwelling stealthily was prima facie evidence of entry with intent to commit a misdemeanor, under § 810.07 Fla.Stat., F.S.A. That section, as amended in 1970 (Ch. 70--29), provides as follows:

A New York Sex Crimes Lawyer said 'in a trial on the charge of breaking and entering, or entering without breaking, a dwelling house with intent to commit a misdemeanor, or with intent to commit a felony, proof of the entering of such dwelling house at any time stealthily, without consent of the owner or any occupant thereof, shall be prima facie evidence of entering with intent to commit a misdemeanor, in the absence of proof of intent to commit any specific crime.'

Here the elements referred to in the statute, of (1) breaking and entering (2) a dwelling house (3) stealthily were shown but the further condition that such be done 'without consent of the owner or any occupant thereof' was not met, since the evidence disclosed the defendant entered with consent and at the direction of the husband-owner. In order for that statute to be applicable, the elements and conditions specified therein must be shown to have been met and complied with.
A New York Drug Possession Lawyer said for the reasons assigned the Court held that the judgment is reversed, and the cause is remanded to the trial court with direction to discharge the defendant.

If you have been convicted of a crime of petit larceny or grand larceny, and the evidence presented against you is insufficient to sustain your conviction, seek the help of a Miami Petit Larceny Attorney and Miami Grand Larceny Attorney in order to defend your case. Miami Criminal Attorney at Stephen Bilkis and Associates can handle your case and make sure to exhaust all possible legal actions to attain your acquittal.

October 12, 2012

Court Discusses Specific Elements of Petit Larceny

In this criminal case, shortly before 10 p.m. on May 16, 1969, the police were summoned by a neighbor to investigate a breaking and entering at the home of the spouses’ victims. The police officers were the first to arrive at the scene. A New York Criminal Lawyer said the first officer positioned himself at the front door while the other officer entered the dwelling through the back door. Upon entering the dining area of the victim’s home the officer Howell saw appellant, informed him that he was under arrest and ordered him to stop. Nevertheless, appellant fled from the house through the front door where he was apprehended by the other officer. Appellant, who was wearing socks on both hands and holding a screwdriver, was handcuffed and searched but no personal property belonging to the spouses was found in his possession.

A Florida Petit Larceny Lawyer said that, the officer continued his search of the house and apprehended defendant in a bedroom. He had in his possession a Masonic ring, watch and suit coat all of which belonged to the husband victim. Also found in the bedroom was a pillowcase which contained a razor, cigarettes and shaving cream.

A New York Criminal Lawyer said that, at the trial the husband victim testified that the ring and watch were Christmas presents and were cherished by him but no monetary value for the watch; ring or suit coat was ever established. Nor was evidence offered on the value of the personalty in the spouses household. The only evidence of the value of any item in the household was the husband victim’s testimony that $70 was missing from his dresser drawer.

A Florida Grand Larceny Lawyer said that, at the conclusion of the trial the jury returned a verdict finding appellant guilty of grand larceny and of breaking and entering with intent to commit a felony, i.e., grand larceny. The trial court determined that the evidence would not support the conviction of grand larceny and reduced the conviction on that count to petit larceny. The conviction of breaking and entering with intent to commit grand larceny was allowed to stand and appellant was sentenced to 20 years at hard labor on that count.

A New York Drug Possession Lawyer said that, appellant brings this appeal from a denial by the trial court of his Rule 3.850, FRCRP, 33 F.S.A., motion to set aside his conviction of breaking and entering with intent to commit a felony, i.e., grand larceny, on the grounds that there was no evidence to establish that he intended to steal the property of another valued at $100 or more.
The State's sole contention is that appellant has no standing to raise an evidentiary issue in a collateral attack upon the judgment of conviction and sentence which has previously been affirmed by this court on direct appeal. In support of this contention the Attorney General vigorously argues that by failing to raise the subject issue in his motion for new trial and assignments of error on direct appeal, appellant is now precluded from posing this issue in a collateral attack upon a final judgment.

The issue in this case is whether appellant should be allowed to attack the court’s decision collaterally.

The Court held that, to convict an accused of a crime when one of the elements of that crime has not been proven is to deprive the accused of the due process of law which is guaranteed to him by our state and federal constitutions. The Court holds that appellant’s challenge to his conviction in this collateral proceeding is cognizable as he has been convicted of a crime without due process of law.

The Court said that the key element of the crime of breaking and entering with intent to commit a felony, i.e., grand larceny, is the 'intent.' A New York Sex Crimes Lawyer to establish the necessary 'intent' to commit grand larceny, it must first be shown that there was property valued at $100 or more which could have been the subject of the larceny. Once the value of the property has been established to be at least $100 then the jury may determine from the other circumstances presented that the breaking and entering was for the purpose of committing grand larceny.

The courts of this State have held time and time again that the value of the property subject to a potential larceny cannot be established by simply showing that a dwelling was filled with household goods, or a store with merchandise. There must be some specific and competent evidence establishing that the value of the property was at least $100. Here, the only specific evidence concerning the value of the spouses’ household goods was the $70 in cash which was missing from the dresser drawer. No monetary value was ever placed on the ring, watch, suit coat, or on all of the other household goods that were 'ransacked' by appellant and defendant.

Thus, there was no competent evidence establishing that personal property of at least $100 was located in the spouses’ household. The Court agrees with the contention appellant now raises in this collateral attack that his conviction for breaking and entering with intent to commit a felony, i.e., grand larceny, cannot stand as the evidence is void of any intention on his part to steal the property of another valued at $100 or more.

In reversing the judgment appealed the Court pause to note that even though a specific value of $100 or more must be established to support a conviction of breaking and entering with intent to commit grand larceny, proof of any value will support a conviction of breaking and entering with intent to commit petit larceny. The trial court is directed to vacate the judgment of conviction and sentence as to defendant's guilt of the crime of breaking and entering with intent to commit grand larceny and to enter a judgment of conviction as to defendant's guilt of the crime of breaking and entering with intent to commit petit larceny and impose a new sentence accordingly.

Accordingly, the Court held that judgment is reversed and remanded, with directions.
The rule is that to convict an accused of a crime when one of the elements of that crime has not been proven is to deprive the accused of the due process of law which is guaranteed to him by our state and federal constitutions. If you have been denied of your right to due process of law while in trial, you will need the help of a Florida Grand Larceny Attorney and Florida Petit Larceny Attorney in order to defend your case and make sure that your constitutional right to due process be upheld. Without the assistance of Florida Criminal Attorney you will lose your guaranteed rights to due process of law. Call us at Stephen Bilkis and Associates for free legal advice.

October 11, 2012

Court Discusses Crime of Petit Larceny in Conjunction with Robbery Charges

Appellant was charged by an indictment of committing the crime of robbery. The trial court instructed the jury on robbery and on the lesser offense of attempted robbery and, in so instructing advised the jury that it could bring in one of three verdicts: 1) not guilty, 2) guilty of robbery, or 3) guilty of attempted robbery. A New York Criminal Lawyer said the appellant’s trial counsel specifically requested the trial court to instruct the jury on the lesser included offense of assault with intent to commit robbery, aggravated assault, and petit larceny, upon the theory that such offenses are within the dictates of the Supreme Court's previous decision.

In rejecting the foregoing request, a New York Criminal Lawyer said that, the trial court observed: I find it difficult to believe that a jury could logically and legitimately determine that assault with intent to commit the crime, aggravated assault or petit larceny could in this instance, In view of the proof shown, be considered lesser offenses. Now it is the interpretation of this Court of the Brown Decisions and the Decisions that the Court, of the Supreme Court of Florida, in the Gilford Case expressly overruled those portions of those decisions wherein the Court has mandated to charge on all lesser included offenses, and left it to the point wherein Only when there was proof submitted that would enable the jury to determine guilt of a lesser offense should the Court charge on it.'
The issue in this case is whether the trial court erred in its decision.

The Court said that the views espoused by the trial judge coincided with this court's pronouncements in its previous decisions. However, in reviewing this court's decision in Hand, the Supreme Court, after observing that as a matter of law every robbery necessarily includes the crime of larceny, concluded that the trial court was obligated to give the requested charge on larceny. And in an obvious effort to resolve this question, the Supreme Court held: 'Any prior appellate decisions conflicting with the principle announced herein are overruled.'

In reviewing our decision in our previous case, the Justice, speaking for the Supreme Court, set forth explicit guidelines for the bench and bar as to the giving of instructions upon lesser included offenses. One example given in that case was that in order to prove a robbery the state must necessarily prove a larceny as an essential element of the major offense. A New York Drug Possession Lawyer said the trial court expressly found that Gilford case, overruled those portions of the Supreme Court's decisions in Brown mandating a charge on all lesser included offenses. At first blush, the trial court's reading of Gilford was correct for there the court stated: The notion of having to charge the jury on something on which there is no proof makes a mockery of the trial, and of the result which will occur if a new trial or dismissal would necessarily follow where the verdict finds no support in the record.

But, as illustrated here, and in the recent opinion of the Supreme Court which the court reviewed upon our certification that the issues presented a question to be of great public interest, the body of the Brown decision refuses to be 'placed at rest.' Appellant was charged with the crime of assault with intent to commit murder in the first degree. A New York Sex Crimes Lawyer said the trial court failed to instruct the jury on the lesser included offenses of assault and battery and bare assault. He was convicted of aggravated assault. On appeal, this court, after observing that he shot the victim with a pistol and interposed a plea of self defense, held that the trial court did not err in refusing to instruct the jury on the lesser included offenses of assault and battery and bare assault. In an opinion authored by Circuit Judge the Supreme Court, in holding: 'Just as it is legally impossible to prove a robbery without also proving a larceny, so too it is legally impossible to prove an assault with intent to commit murder in the first degree without also proving a bare assault.', concluded that if sufficient evidence was adduced upon which to instruct the jury on the major offense of assault with intent to commit murder in the first degree, the trial judge should have instructed the jury on the necessarily included offense of bare assault. The court further held that since the accusatory pleading charged the defendant with shooting the victim and the evidence revealed that the victim was shot, it was apparent that the major crime for which the defendant was charged did include the lesser offense of assault and battery (a category (4) situation) and held that the refusal to so charge was reversible error.

In the case at bar, Appellant was charged with robbery. It is legally impossible to prove a robbery without also proving a larceny. The evidence is undisputed that not more than $80.00 was stolen. The trial court should have given Hammer's requested instruction on petit larceny, a necessarily included offense. The indictment charged appellant with 'by force, violence, assault or putting in fear, rob or steal', and the evidence reflected that he pointed a .22 caliber sawed-off rifle and a .25 caliber pistol at the victim in perpetrating the robbery. The trial court, pursuant to the dictates of Brown's category (4) and the Supreme Court's opinion, should have given the requested aggravated assault instruction to the jury.

Accordingly, the Court held that the judgment is reversed for a new trial.

The rule is that, in order to prove a robbery the state must necessarily prove a larceny as an essential element of the major offense. If you are involved in a similar case, and larceny has not been proved, seek the assistance of a New York Petit Larceny Attorney and New York Grand Larceny Attorney in order to appeal your case for a lesser offense. At Stephen Bilkis and Associates, our Florida Criminal Attorney can competently handle your case. Call us for free consultation.

October 10, 2012

Court Decides Whether to Issue Writ of Heabeas Corpus

Appellant, who was petitioner below in a habeas corpus proceeding, seeks reversal of an order of the trial judge denying the writ and remanding him to the custody of the appellee, Custodian of the Florida State Prison. The point for determination on this appeal is the legality of the sentence of the appellant in view of the apparent inconsistencies between Section 811.301, Florida Statutes, F.S.A. and Section 817.01, Florida Statutes, F.S.A.

A Franklin Criminal Lawyer said that, appellant was informed against in the Circuit Court for Franklin County by an information in two counts, reading in part as follows: Appellant, did then and there designedly by false pretense, and with intent to defraud, obtain from another person property, to-wit: $10.00, $10.00, and $5.00 from a certain individuals by promising to heal their illness and infirmities and then absconding with their money, knowing that his promises to heal were false. Second Count: A New York Criminal Lawyer said the appellant did then and there practice the healing art without first having obtained a certificate or proficiency in the basic sciences, by professing to heal a certain individuals for the sum of $10.00, $10.00 and $5.00.

Upon arraignment, a Franklin Criminal Lawyer said that, appellant pleaded guilty to the offense condemned by the first count and the second count was nolle prosequied. On September 26, 1955, he was sentenced to five years imprisonment in the State Prison under the first count of the information. When he began serving the sentence does not appear from the record. On March 26, 1956, appellant, without benefit of counsel, filed in the Circuit Court for Union County his petition for writ of habeas corpus contending that the information pursuant to which he was convicted was defective and that he had been denied counsel as well as a trial by jury. After hearing the matter, the Circuit Judge on April 14, 1956, found that the questions raised by the petition were not sufficient to justify the issuance of the writ of habeas corpus. A New York Drug Possession Lawyer said that, the Judge thereupon denied the writ and granted to the appellant the right of appeal. Reversal of this order denying the writ is sought by this appeal.

By his brief filed in propria persona, a Franklin Petit Larceny Lawyer said that the appellant contends that the writ should have issued. A New York Sex Crimes Lawyer said by its original brief, the State contended that the court below properly denied the writ. However, by a supplemental brief, as we shall see, the Attorney General, with an admirable sense of justice, concedes that error was committed in the original sentence.

The issue in this case is whether the court erred in denying the issuance of writ of habeas corpus in favor of the appellant.

The Court has carefully reviewed the record presented to the trial judge in the habeas corpus proceeding. In fairness to him it should be stated here that the proposition of law announced by this opinion as the basis for reversal was not presented for his consideration. The Court finds that on the questions actually presented to him, he ruled correctly. However, when the record and briefs came to this court for consideration, our examination thereof indicated that there was implicit in the original sentence an error which requires reversal even though the point was not presented below and was not originally argued here. It was at this stage that the appellant and the State were requested by this court ex mero motu to submit briefs on the legal problem which we hereafter discuss, and by the supplemental brief filed pursuant to this request, the State now concedes error in the sentence.

Ordinarily this court considers on appeal only those questions tendered by the record and argued by the parties in their briefs on the basis of errors properly assigned. However, historically, habeas corpus is a high prerogative writ. It is as old as the common law itself and is an integral part of our own democratic process. The procedure for the granting of this particular writ is not to be circumscribed by hard and fast rules or technicalities which often accompany our consideration of other processes. If it appears to a court of competent jurisdiction that a man is being illegally restrained of his liberty, it is the responsibility of the court to brush aside formal technicalities and issue such appropriate orders as will do justice. In habeas corpus the niceties of the procedure are not anywhere near as important as the determination of the ultimate question as to the legality of the restraint. So it is in the case at bar that this court felt justified in raising on its own initiative the question of law hereafter discussed.

In the original brief filed here the State contended that the appellant pleaded guilty of the offense defined by Section 817.01, Florida Statutes, F.S.A., which reads in part as follows: 'Whoever designedly by a false pretense, or by a privy or false token, and with intent to defraud, obtains from another person any property, or obtains with such intent the signature of any person to a written instrument, the false making whereof would be punishable as forgery, shall be punished by imprisonment in the state prison not exceeding ten years, or by fine not exceeding five hundred dollars.'

It should be noted that the penalty for violation of this Statute is imprisonment for not more than ten years or fine not exceeding $500. This Act was in the books for many years prior to 1951. Our own examination of the record, however, suggested a consideration of the effect of the passage of Chapter 26912, Laws of Florida, 1951, now cited as Section 811.021, Florida Statutes, F.S.A., upon the pre-existing Statute which we continue to cite as Section 817.01, Florida Statutes, F.S.A., and which continues to be included in the biennial revision of the Florida Statutes through 1955. Chapter 26912, Laws of Florida, 1951, Section 811.021, Florida Statutes, F.S.A., reads in part as follows:

'(1) A person who, with intent to deprive or defraud the true owner of his property or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person:
'(a) Takes from the possession of the true owner, or of any other person; or obtains from such person possession by color or aid of fraudulent or false representations or pretense, or of any false token or writing; or obtains the signature of any person to a written instrument, the false making whereof would be punishable as forgery; or secretes, withholds, or appropriates to his own use, or that of any person other than the true owner, any money, personal property, goods and chattels, thing in action, evidence of debt, contract, or property, or article of value of any kind;

'(3) If the value of the property stolen as mentioned in the preceding section is less than fifty dollars the offender shall be deemed guilty of petit larceny and upon conviction, shall be punished by imprisonment in the county jail not exceeding six months or by fine not exceeding three hundred dollars.'

It is perfectly clear that Chapter 26912, supra, was a legislative revision of the laws condemning the offense of larceny by redefining various offenses theretofore defined by certain sections of our Statutes. It is also clear that the offense condemned by paragraph (1)(a) of Section 811.021, Florida Statutes, F.S.A., is a comprehensive revision of the offense previously condemned by Section 817.01, Florida Statutes, F.S.A., as well as other pre-existing Statutes. In other words, insofar as Section 817.01, Florida Statutes, F.S.A., is concerned, Section 811.021, Florida Statutes, F.S.A., a later Act, defines and comprehends the same offense. The primary difference is that under Section 817.01, Florida Statutes, F.S.A., the penalty was a maximum of ten years in prison or a fine of $500, whereas, under subsection (3) of Section 811.021, Florida Statutes, F.S.A., where the amount involved is less than $50, the offense is defined as petit larceny and the prescribed punishment is a maximum of six months in county jail or a fine not to exceed $300. The resultant importance of this situation to the appellant is obvious. If Section 817.01, Florida Statutes, has been superseded by Section 811.021, Florida Statutes, then the appellant could not have been legally sentenced upon his conviction under the first count of the information to a period of more than six months in county jail because the amount involved was less than $50. Actually, he was sentenced to five years in the State Prison.

The Court does not overlook the fact that both sections of the Statutes cited have been included in the biennial revisions of the Florida Statutes. However, we have held that where there is an inconsistency between sections of the Revised Statutes, we may look behind the revision to ascertain which Act was the latest directive of the Legislature on the particular subject. We have also consistently followed the well settled rule of statutory construction to the effect that where a Statute covers the whole subject matter of an earlier Act and it is evident that it was intended to be a revision of or a substitute for the earlier Act, then the later Statute operates as a repeal of the earlier Statute to the extent that its provisions are revised and supplied. This is so even though the later Statute contains no express words of repeal and despite the rule that implied repeals of Acts of the Legislature are to be invoked only under the most circumspect consideration and when no other conclusion can be reached.

It is here pertinent to note that Section 6 of Chapter 26912, supra, specifically saves from repeal certain sections of the pre-existing Statutes and Section 7 of the same Act provides: 'All other laws except as specifically enumerated in the preceding section, inconsistent or in conflict herewith, be and the same and, hereby repealed.'

Section 817.01, supra, was not one of the Acts specifically saved from repeal. Customarily, the general repealing clauses repeal prior Statutes 'in conflict' with the subsequent Act. We deem it to be of some consequence that the repealing clause in Chapter 26912, supra, repealed not only prior Acts which were 'in conflict' therewith but also prior Acts 'inconsistent' therewith. Certainly Section 817.01, Florida Statutes, F.S.A., providing a penalty up to ten years in the State Prison was inconsistent with the later Act which prescribed a maximum jail sentence of six months in the county jail for the same offense.

Although admittedly not binding upon us as a precedent, we respect for its persuasive value the reported opinion of the Circuit Judge wherein Section 811.021, Florida Statutes, F.S.A., was involved and wherein with reference thereto it was stated: 'The real purpose of the statute was to eliminate technical distinctions between the offenses of larceny, embezzlement and obtaining money under false pretenses. Prior to the enactment thereof in 1951 it was not uncommon for a criminal prosecution to become confused and sometimes result in a miscarriage of justice because of the fine line of demarcation between these offenses as they had previously been defined by the legislature and the courts. The history of the times and of the particular legislation involved clearly indicates that the intent of the legislature was to eliminate this confusion and to simplify prosecutions involving the wrongful and criminal acquisition by one person of the property of another.'

As pointed out in the forepart of this opinion, the Attorney General, by his supplemental brief, concedes that as to the crime charged on count one of the information before us, Section 811.021, Florida Statutes, F.S.A., must control. As stated above, the record shows that count two was nolle prosequied on order of the Circuit Judge after arraignment. The Court agrees that there can be no question as to the guilt of the appellant under counts one inasmuch as he actually pleaded guilty to the offense of petit larceny as defined by the applicable Statute, 811.021, supra. We do hold, however, that the maximum sentence that could be imposed upon him was imprisonment for not more than six months in the county jail or a fine not to exceed $300. We are not informed as to the amount of time that the appellant has been confined in the State Prison. However, it is obvious that his sentence was illegal for the reason that it exceeded the maximum allowed by law for the offense involved. It must therefore be corrected.

For the reasons hereinabove stated the order denying the issuance of the writ of habeas corpus is hereby reversed, with directions to the lower court to issue the writ and thereby direct that the appellant be immediately presented before the Circuit Court of Franklin County for proper and legal sentencing in accordance with this opinion. If the appellant has already served the maximum time prescribed by law, he will of course be discharged from custody by appropriate order of the Circuit Judge of Franklin County when the matter is presented to him.

A person cannot be illegally restrained of his right to liberty. If you have been charged of a crime and there was a violation of this rule seek the advice of Franklin Criminal Attorney and Franklin Petit Larceny Attorney in order to help you with your case. Call us at Stephen Bilkis and Associates for free consultation.

October 9, 2012

Defendant Submits a Nolo Contendre Plea

In this sex crime case, by an Information, the State of Florida charged that, on October 1, 1997, petitioner, who was 18 at the time, violated former Florida Statutes § 800.04(3) by committing an act of Sexual Battery as defined in Florida Statutes § 794.011(1)(h) upon a child under the age of 16. A New York Sex Crimes Lawyer said that, petitioner entered a plea of nolo contendere to the charge for which the court withheld adjudication, and the court entered an "order of supervision" placing petitioner on "sexual offender probation" for four years. In March 2001, the Florida court granted a defense motion to terminate petitioner's probation and petitioner was thereafter required to register as a sex offender under Florida Statutes § 943.0435, Florida's version of SORA.

Prior to moving to New York, petitioner sent a letter to the New York State Division of Criminal Justice Services (DCJS) informing it that he was required to register as a sex crime offender in Florida and the he intended to move to New York by February 8, 2006. DCJS thereafter sent petitioner sex crime offender registration form, which petitioner executed and returned. After receiving this form, the Board, in a letter determined that petitioner was a sex crime offender required to register under SORA, and upon the recommendation of the Board, the court determined that petitioner's Final Risk Level Determination was level 1.

A New York Criminal Lawyer said that, petitioner commenced an Article 78 proceeding to vacate the Board's determination that he was required to register as a sex crime offender under SORA. In a decision the court determined that petitioner was entitled to a hearing to determine whether petitioner was properly served with the Board's notification letter informing him that he was subject to the registration requirements of SORA. Rather than proceed with such a hearing, the Board, stipulated that it would recommence the registration process and "re-issue a final determination." Thereafter, the Board issued a new determination informing petitioner that he was required to register under SORA because he had been convicted of sex offense as set forth in Correction Law § 168-a.
A New York Criminal Lawyer said that, petitioner petitions for an order and judgment, pursuant to CPLR 7801-7806, annulling and vacating the January 25, 2011 final determination of respondent Board on the grounds the determination was arbitrary and capricious, was affected by error of law and involved an abuse of discretion.

The essence of petitioner's claim is that his Florida nolo contendere plea to the crime of indecent assault, for which the court withheld adjudication, and entered an "order of supervision" placing petitioner on "sexual offender probation" for four years, does not constitute a conviction for purposes of the Sex Offender Registration Act, and that, as such, the Board erred in determining that petitioner was required to register under SORA.

A Nassau County Sex Crimes Lawyer said the issue in this case is whether the Florida proceeding can serve as a basis for requiring him to register as a sex crime offender under SORA.

The Court said that SORA indisputably requires persons convicted of certain sex offenses in other jurisdictions to register as sex offenders when they move to New York. Here, the Board relies upon the section requiring a person to register for a "conviction of (ii) a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred". Because SORA does not define "conviction," the court in Matter of Smith found it appropriate to look to CPL 1.20(13), which provides that conviction includes "the entry of a plea of guilty" to an accusatory instrument.

New York does not recognize nolo contendere pleas. Nevertheless, the fact that a defendant does not technically admit guilt in a nolo contendere plea has not prevented New York from recognizing that a nolo contendere plea from another jurisdiction constitutes a conviction for sentencing a defendant as a second felony offender.

New York does recognize Alford pleas, which are similar to nolo contendere pleas, and in which a court will accept a plea even where a defendant negates an essential element of the charged crime in his or her allocution. Importantly, the Court of Appeals has recognized that, from the state's perspective, an Alford plea is no different from any other guilty plea, and may be used for the same purposes as any other conviction, including for impeachment, a predicate for enhanced sentencing, a predicate for civil penalties, and sex offender registration under SORA.

In sum, the Court held that a nolo contendere plea is generally deemed a conviction. A Queens Drug Possession Lawyer said there is also nothing unique about SORA that suggests that a nolo contendere plea should be treated differently for purposes of SORA registration. Accordingly, a nolo contendere plea is sufficiently akin to a guilty plea to be deemed a conviction for purposes of CPL 1.20(13), and thus may be considered a conviction for purposes of SORA.

Petitioner nevertheless argues that the Florida proceeding should not be deemed a conviction not just because of the nolo contendere plea, but also because the adjudication was withheld. Such an argument was essentially rejected by the Appellate Division, Third Department, in Matter of Smith. By parity of reasoning with Matter of Smith, it is petitioner's nolo contendere plea here that constitutes the conviction, and the fact that adjudication was withheld has no bearing on whether the Florida crime constitutes a conviction for purposes of SORA. Courts have come to similar conclusions with respect to use of an adjudication withheld for purposes of a parole violation.

There is also nothing fundamentally unfair about deeming plaintiff's Florida proceeding a conviction for purposes of SORA, since, as plaintiff concedes, plaintiff's nolo contendere plea with adjudication withheld for violating Florida Statutes § 800.04(3) constitutes a conviction for purposes of Florida's sex registration requirements, and required him to register as a sex offender in Florida. Indeed, Florida courts have held that a nolo contendere plea with adjudication withheld is generally considered a conviction for purposes of determining a defendant's sentence for subsequent convictions.

Petitioner nevertheless submits that the nolo contendere plea with adjudication withheld should be considered like a youthful offender adjudication. This argument, however, ignores the fact that Florida has its own youthful offender statute, and that petitioner was not adjudicated as a youthful offender under that statute. Moreover, even if petitioner had been adjudicated a youthful offender under Florida law, such treatment would not have affected petitioner's obligation to register as a sexual offender in Florida. Since a Florida youthful offender would have to register as a sex offender in Florida, the proceeding would be considered a conviction under SORA, even though a New York youthful offender would not have to.

In sum, the Court held that petitioner has failed to demonstrate that his Florida nolo contendere plea with adjudication withheld may not be considered a conviction under SORA. In the absence of any other grounds for annulling or vacating the Board's determination that he is required to register as a sex offender under SORA, and in the absence of any factual issues, the petition must be. Accordingly, the Court held that, the petition be dismissed.

The rule is that, a nolo contendere plea is generally deemed a conviction. If you have been charged or convicted of a sex crime, seek the help of a New York Rape Attorney and/or New York Criminal Attorney in order to be informed of the legal consequences of your case. Call us at Stephen Bilkis and Associates for free consultation.

October 9, 2012

Court Discusses Mental Hygiene Law

The complainant brought this action to recover damages for injuries he claims to have suffered as a result of being knocked down as he attempted to board a bus operated by the accused. At the time of jury selection, the complainant moved to preclude the accused from offering evidence of or in any way calling the jury's attention to the facts of the complainant’s incontestable past use of heroin and his current participation in a methadone treatment program. A New York Drug Crime Lawyer said at the jury coordinating part, the judge determined that the accused would be precluded from any reference to the complainant’s current use of methadone or his participation in the treatment program. He reserved to the trial judge the issue of whether the complainant’s past use of heroin was admissible in the liability phase of the trial.

Following jury selection and prior to opening, the court granted the balance of the complainant’s motion and precluded the accused from mentioning or offering any evidence of the complainant’s past use of heroin. Given that there is a paucity of reported case law regarding the admissibility of such evidence in civil proceedings, the court files the decision to memorialize its opinion.

A New York Criminal Lawyer said the motion does not question whether a complainant's use of heroin is admissible in the damages phase of a civil trial where the jury is assessing a variety of health and life issues relating to the complainant, such as life expectancy. In that context, with an appropriate foundation, testimony regarding the complainant’s heroin use would surely be admissible. Nor is it about whether the complainant was under the influence of heroin at the time of the accident so that his powers of perception or recollection might actually have been impaired by his heroin habit; nor whether the complainant was under the influence of heroin at the time of his testimony. The use of heroin by the complainant in those circumstances would be admissible even in the liability phase to impeach his credibility as a witness. Indeed, in all of those situations, proof of heroin use and addiction even by extrinsic evidence would be proper. The lone issue decided by the court on the branch of the motion reserved to it was whether the complainant’s past use of heroin was admissible as an act of moral depravity offered only to attack his credibility as a witness.

With the triviality of the advocacy dissipated, neither side could nor did take issue with the black letter rule which states that a witness may be examined with respect to specific immoral, vicious or criminal acts which have a bearing on the witness's credibility. Founded on such rule, the accused opposed the preclusion arguing that the complainant’s heroin addiction and use over a long period of his life tended to establish moral depravity and, therefore, those acts were relevant and proper impeachment of his credibility as a witness. That same black letter rule, of course, acknowledges the power of the trial court to exercise discretion with respect to the nature and extent of bad act cross-examination. A Nassau County Drug Possession Lawyer said over the accused person’s strong exception, the court exercised its discretion to preclude proof of the complainant’s addiction and use of heroin which, incidentally, would have included reference to the complainant’s hospital records if extrinsic proof of the claimed past bad acts became necessary.

There is little doubt that the complainant's heroin habit qualifies as a specific immoral, vicious and/or criminal act which could have a bearing on the complainant's credibility. The court, nonetheless, exercised its discretion to preclude the accused from offering such evidence or making such reference before the jury on two grounds. The first rests on the synergy of the proposed evidence with other evidence to be offered by the accused to impeach the complainant's credibility. Not unexpectedly for someone who, at a young age, ruined his entire life as a slave to heroin, the complainant has the extraordinary criminal record of a petty thief and drug abuser. Among the many, but hardly exhaustive of them, some 30 criminal convictions, including two for criminal possession of a controlled substance, were to be (and were) offered to impeach the complainant's credibility. In this context, the proposed use of the complainant's heroin habit to attack his credibility further either in argument or by confrontation on the stand was determined by the court to be both cumulative and highly prejudicial. Provident discretion impelled its preclusion.

Another ground is by logical extension of a judge’s prior determination that reference to the complainant’s participation in a methadone treatment program was to be precluded. Had the court denied the balance of the motion in limine (a motion made before the start of a trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in a trial), the complainant would have been presented with the choice of keeping the current participation in a methadone treatment program confidential, as the previous judge’s had ruled, but only at the expense of foregoing the opportunity to rehabilitate his credibility in the eyes of the jury by showing that he had given up his life of moral depravity for a life of new hope in treatment.

More importantly, the judge’s ruling relied on Mental Hygiene Law provides that notwithstanding any other provision of law including but not limited to the election law, no person's rights as a citizen of the United States or of the state of New York shall be forfeited or abridged because of such person's participation in chemical dependence programs, treatment facilities or services.

Such participation shall include but is not limited to the certification as substance dependent of a person to the care and custody of the office under previously existing provisions of law. A Queens Drug Possession Lawyer said the fact, proceedings, application, or treatment relating to a person's participation in chemical dependence programs, treatment facilities, or services shall not be used against such person in any action or proceeding in any court.

Obvious from these words is the enactment by the Legislature of a strong public policy that participation in a drug treatment program is to be confidential and that no right shall be forfeited or abridged on account of program participation.

It is clear to the court, therefore, to give full intended effect to the strong public policy of New York State, that even if the past use of heroin were the only basis to attack the credibility of the complainant, his current participation in a methadone treatment program would preclude any reference to or offer of proof of past heroin use when offered solely for the purpose of impeaching his credibility on the grounds of his immoral, vicious or criminal acts of moral depravity.

Accordingly, as a matter of public policy, a trial court in a civil action should exercise its discretion to preclude reference to or the offer of evidence regarding the past heroin use and addiction of a witness who is at the time of his testimony participating in a chemical dependency treatment program where such reference or offer is made solely to impeach the credibility of that witness.

For all the foregoing reasons, the complainant’s motion to preclude reference or the offer of proof by the accused, either extrinsically or directly, of the past use of heroin by the complainant for the sole purpose of impeaching his credibility on the witness stand was granted.

Our past will always play a role in our present and future that is why it is important that we live clean. Once we made a mistake, the society that we are in seldom gives a second chance even though we already suffered for the consequences of our wrongdoings. If you want to prove your innocence, consult the NY Drug Crime Lawyers together with the NYC Criminal Attorneys from Stephen Bilkis and Associates. When you are involved in a drug possession dispute, call the New York City Heroin Attorney.

October 9, 2012

Defendant Charged with Drug Possession

A New York Criminal Lawyer said in this drug offense case, defendant was found in his apartment with 6¼ grams of heroin about twenty to thirty minutes after a package containing 13 grams of heroin was delivered by mail to his apartment. Customs and postal inspectors had discovered the heroin in the package when it had arrived in the country at San Francisco. The package was mailed from Thailand and addressed to defendant’s residence in Daytona Beach, Florida. The postal authorities arranged a controlled delivery of the package to defendant’s residence.

A New York Criminal Lawyer said that, about twenty to thirty minutes after this controlled delivery had taken place, four officials, one a postal inspector, and another a customs agent, and the other two, Daytona Beach police detectives, entered defendant’s apartment under a valid search warrant. They found defendant in a bedroom with 6¼ grams of heroin on a coffee table in front of him. They conducted a search to find the remaining heroin. During this search, they found thirty packets of heroin, each wrapped in aluminum foil and containing a mixture which included approximately one milligram of heroin, in a drawer of a dresser in a bedroom across the hall from the room where defendant had been found. It was established at trial that these "dime bags” small packets wrapped in aluminum foil containing about one milligram of heroin are commonly used in passing heroin on the streets. The authorities also found some butts of marijuana cigarettes in the same bedroom drawer.

While the authorities were searching the apartment, defendant remarked to them, referring to the thirty "dime bags", "I bet you didn't think I could package it up that quick".

A New York Drug Possession Lawyer said that, the indictment charged possession with intent to distribute only the 6¼ grams found on the coffee table. The Government relied upon the 30 "dime bags" to prove that defendant had the requisite intent to distribute. Its theory was that the heroin found in packages suitable for street distribution indicated that defendant was a dealer in heroin; that he had received the 13-gram package delivered in the mail for the purpose of selling or distributing most or all of the 13-gram quantity; and that he therefore intended to distribute the 6¼ gram quantity found on the coffee table.

A New York Sex Crimes Lawyer said that, defendant advanced a different theory of the evidence at trial. He testified that he was himself addicted to heroin and that he intended to use the entire 13-gram quantity himself. He said that the 30 "dime bags" found in the drawer were not packaged with any heroin from the 13-gram package. He alleged that he had had that entire heroin on the coffee table in front of him at the time he heard that the police were coming; and that when he heard of their arrival, he had wadded up the tinfoil with the rest of the heroin on it and had thrown it into a corner of a closet. He explained the remark he had made about "packing it up that quick" by saying he had made it in order to deflect the authorities from their search before they found the wadded-up foil containing the remaining heroin.

Defendant’s first contention concerns the sufficiency of the evidence. He argues that the evidence was consistent with his theory that he was going to keep the heroin for his personal consumption; thus, he says, the jury "could not" have "excluded" this "hypothesis of innocence" as "unreasonable". This, he argues, means that the evidence was insufficient to support the verdict.

The issue in this case is whether the evidence used against defendant is insufficient to support his conviction.

The Court held that the argument is without merit, because it reflects a misunderstanding of the standard by which this Court reviews the sufficiency of the evidence to support a guilty verdict.
The standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences there from failed to exclude every reasonable hypothesis other than guilty, but whether the jury might so conclude. As we understand it, the appellant's argument is only that his theory that he intended to use the heroin himself is but "one hypothesis of innocence", which he is suggesting might "satisfy this Court's sense of reasonableness"; but we have often held that this is not enough to permit us to reverse the verdict. We must uphold a guilty verdict if there is any "theory of the evidence from which the jury might have excluded every hypothesis except guilt beyond a reasonable doubt". Without recounting every piece of evidence leading to this conclusion, the Court concludes from our review of the evidence that this standard was met in this case.

The appellant's second contention is a dual one. He contends that the trial judge erred in admitting testimony (a) about the thirty packets of heroin found in the dresser drawer; and also (b) about the marijuana cigarette butts found in the drawer. Both, he argues, amounted to evidence of other crimes, and their introduction was therefore incurably prejudicial.

The Court disagrees. The evidence concerning the thirty packets of heroin was admissible to show intent, as we have already noted, and evidence of other similar crimes is admissible to show intent. The testimony concerning marijuana was not admissible to show intent, but its admission did not, in our view, constitute reversible error. The testimony was confined to two statements made by two of the participants in the search of defendant’s apartment. They amounted to no more than descriptions of what they saw in the bedroom drawer; they were mere statements of having observed the res gestae. Later in the trial, when the Government sought to introduce the marijuana butts as an exhibit, and to have a chemist testify that the substance had been chemically identified as marijuana, the trial judge excluded the exhibit and instructed the jury to disregard the chemist's testimony concerning marijuana. In this state of the record, we cannot hold that the brief allusions to marijuana in the testimony of the customs agent and police detective who searched the apartment were sufficiently prejudicial to require a new trial.

The principal objection to the charge to the jury concerns the trial judge's instruction that: if you should find, beyond a reasonable doubt, that the Defendant had knowing and intentional possession, as charged, the fact of such possession alone, of a large quantity and/or quality of heroin, unless explained to the satisfaction of the jury, by the evidence in the case, permits, but does not require the jury to draw the inference and find that the heroin was possessed with intent to distribute. The appellant notes that there is no authority for permitting an inference of intent to distribute merely from the fact of possession of heroin of a high quality alone, and that this instruction, read literally, would authorize just such an inference. He argues, therefore, that the trial judge committed reversible error in giving this charge.

The Court cannot escape the obvious: the quality of the drugs possessed, in conjunction with the quantity, is relevant to the inference to be drawn from possession of a large quantity. Possession of six grams of 99.5% pure heroin the purity of the heroin found in defendant’s possession obviously supports more strongly an inference of intent to distribute than does possession of heroin of, say, 5% purity. Here, the evidence was sufficient to establish that the heroin defendant possessed, given its quality and quantity taken together, was worth $60,000 on the street. The Court concludes that it was highly unlikely that, in the circumstances of this particular case, the effect of the instruction was to lead the jurors into thinking they could infer intent from the quality of the heroin alone. The Court finds no "strong probability that the instructions `taken as a whole were such as to confuse or leave an erroneous impression in the minds of the jurors'". The Court therefore finds that the particular instruction in question did not constitute reversible error. The appellant also objects to the sequence in which the judge's instructions were given, arguing that it tended to confuse the jury on the issue of intent, and to the failure of the trial judge to give a literal definition of intent. The Court finds these objections without merit. Accordingly, the Court held that judgment is hereby affirmed.

Heroin possession is a serious crime that may put you on jail for a long time. Seek the legal advice of a qualified lawyer to help you with your case from Stephen Bilkis and Associates for guidance.

October 8, 2012

Defendant Claims there is Insufficient Evidence for a Drug Possession Charge

The defendant's convictions arose from a series of drug transactions which began when a certain person contacted another person and informed the latter that he had heroin for sale. The former was unaware that the latter was a confidential informant for the Drug Enforcement Administration (DEA). A New York Criminal Lawyer said the parties and co-defendant agreed that the former would sell the informant 25 ounces of heroin for $6,000 per ounce. While the co-defendant was in Mexico he ran into the defendant who offered to drive him to Texas. He agreed and the two men drove to the border. As they approached the border the co-defendant told the defendant that he wished to walk across the border and would meet the defendant on the United States side. The defendant drove the vehicle across the border while co-defendant walked across carrying the one gram sample of heroin.

A New York Drug Crime Lawyer said that, the defendant and his co-defendant drove to the informant’s apartment where they met the informant and an Agent outside the apartment. The defendant and the Agent remained outside in their respective vehicles while co-defendant and the informant went inside. When the two men left the apartment the Agent saw co-defendant hand informant a piece of paper later found to contain .12 grams of heroin. The informant gave the paper to the Agent. Co-defendant, the informant and the Agent then discussed the purchase of a test ounce and the full 25 ounce shipment. The defendant drove the co-defendant to another apartment where he met with the certain John doe while the defendant remained outside in the vehicle.

Later that evening co-defendant and the informant took one ounce of heroin to the Agent’s motel room and sold it to him for $5,000 cash. Co-defendant returned to Mexico where he processed the remaining ounces of heroin. The defendant came into the apartment while this processing was being done. A Nassau County Drug Possession Lawyer said the next morning co-defendant secreted heroin in the stereo speaker of his vehicle. After doing so he asked the defendant for help in replacing the screws. The two men then drove to the informant’s apartment in the United States. While en route into town co-defendant advised the defendant that what he was doing was not honest and that he should not get involved in similar "deals". When co-defendant and the defendant arrived at the informant’s apartment the defendant carried the heroin into the apartment. Later the three men left for the Agent’s motel with the defendant driving. Co-defendant, believing they were being followed, directed the defendant to return to the informant’s apartment. Co-defendant and the informant then drove to the Agent’s motel to deliver the heroin and the defendant left. Co-defendant was arrested as he delivered the heroin to the Agent. Defendant was arrested near Hidalgo, Texas.

A New York Intent to Distribute Lawyer said that, defendant was indicted on four counts: 1) conspiracy to possess heroin with the intent to distribute; 2) possession of one gram of heroin with intent to distribute; 3) possession of one ounce of heroin with intent to distribute, and 4) possession of 16 ounces of heroin with the intent to distribute. All of the substantive counts also charged the defendant with aiding and abetting the crimes. A jury convicted the defendant on all but the conspiracy charge. The court sentenced the defendant to three concurrent five-year sentences and a four-year special-parole term.

The issues in this case are: whether the evidence was insufficient to support defendant’s convictions; and whether the district court erred in concluding that a minimum four-year imprisonment was statutorily required.

The Court in deciding the first issue which is the sufficiency of the evidence said that the defendant asserts that the evidence was insufficient to support his convictions. In evaluating the sufficiency of the evidence, the reviewing court must consider the evidence in the light most favorable to the government with all reasonable inferences and credibility choices made in support of the jury's verdict. The defendant did not put on any evidence and requested a judgment of acquittal at the close of the government's case. It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence.

In order to sustain a conviction for possession of heroin with intent to distribute, the government must prove three elements: (1) knowing, (2) possession, (3) with specific intent to distribute. The intent to distribute may be inferred from the possession of a large quantity of the drug. A conviction for aiding and abetting requires proof that the defendant aided and abetted in both the possession and distribution of the drug. The government must prove that the defendant associated with the criminal venture and participated in an act with intent to further the venture. Mere presence and association alone are insufficient to sustain a conviction for aiding and abetting; however, they are factors to be considered. To determine whether the evidence was sufficient to support the defendant's convictions we must determine whether the government proved each of the elements of possession or aiding and abetting with respect to each substantive count. To do so we will analyze each conviction separately.

1. Possession with Intent to Distribute 16 Ounces

The evidence is clearly sufficient to sustain this count. A Nassau County Sex Crimes Lawyer said the defendant accompanied co-defendant to the informant’s home. While in Mexico he had helped co-defendant replace the screws in the speaker cabinet, thereby concealing the package containing the heroin before they crossed the border and helped loosen the speaker screws and remove the package at the informant’s house. He entered the home and later went out and carried the heroin into the apartment.

Possession was clearly established. The jury was entitled to infer intent to distribute from the quantity of narcotics possessed. Knowledge was also sufficiently proved. Circumstantial evidence may be used to prove knowledge. The circumstances, including the hiding of a package in the speaker panel, were sufficient for the jury to infer knowledge. The evidence was, therefore, sufficient to support the defendant's conviction for possession with intent to distribute 16 ounces of heroin.

2. Possession with Intent to Distribute One Gram

Co-defendant testified that he ran into the defendant after returning to Mexico to pick up a one gram sample of heroin. The defendant wished to go into town and offered to drive co-defendant to the United States. As they approached the border he told the defendant that he wished to walk across and would meet him in the parking lot on the United States side. The two waited on the United States side for approximately 30 minutes. The defendant was physically present near the area where the sample was distributed, but he never left the truck.

The question is, do the factors above constitute proof beyond a reasonable doubt that the defendant aided and abetted the knowing possession with intent to distribute the sample. Co-defendant testified that he had not discussed heroin with the defendant and that he made an excuse, the nature of which he did not recall, as to why he wished to walk across. His behavior was suspicious, but the defendant's mere presence around suspicious activity " 'will not support an inference of participation' in the criminal activity." Nonetheless, from his behavior at the border crossing, the wait after the crossing, and the drive to the informant’s apartment and the meetings to which defendant drove him, the jury could have inferred that the defendant had knowledge of his purpose and chose to aid him in it. The evidence, viewed in the light most favorable to the government, was sufficient to support the defendant's conviction for possession with intent to distribute one gram of heroin.

3. Possession with Intent to Distribute One Ounce

The defendant was not involved in the sale of the ounce to the Agent. The delivery was made by co-defendant and the informant. There is no evidence connecting the defendant with this count. The only connection between the defendant and this count is that he aided and abetted co-defendant in delivering the sample which preceded this sale. However the government did not introduce direct proof that the defendant knew what, or how much, co-defendant was carrying on that first trip; nor was there any evidence that the defendant knew at the time that this transaction was intended to lead to a series of transactions. Further, the meeting at which the parties planned the sale of the ounce occurred after the defendant had returned to Mexico. Because the government produced no evidence linking the defendant to the one ounce sale, the evidence is insufficient to support the defendant's conviction for possession with intent to distribute one ounce of heroin.

On the second issue, the district court sentenced the defendant to three concurrent five-year sentences on the three counts. At the sentencing hearing, the district judge stated that although Hernandez-Beltran was a minor participant in the crimes he was bound by statute to impose a minimum sentence of five years imprisonment. 21 U.S.C. Sec. 841(b)(1)(B). The defendant asserts that the mandatory minimum sentence was not required because the court failed to instruct the jury that, on the 16 ounce count, the government had to prove that the defendant possessed at least 100 grams of heroin. The defendant did not object to the omission at trial; therefore, review is for plain error.

The uncontroverted evidence at trial demonstrated that the last transaction involved 376.4 grams of heroin. (The indictment alleged a transaction of approximately 16 ounces or 494 grams.) Section 841(b)(1)(B) mandates a minimum sentence of five-years imprisonment for a person convicted of a violation of Sec. 841(a)(1) involving 100 grams or more of a mixture containing a detectable amount of heroin. We have not directly addressed this issue. Both the Eighth and Tenth Circuits, however, have stated that, where the indictment alleges an amount greater than 100 grams and the uncontroverted proof at trial is that the amount involved is greater than 100 grams, the district court must sentence under Sec. 841(b)(1)(B). The Court agrees with the decisions of our sister circuits. Where, as here, an indictment alleges that a transaction involves an amount greater than 100 grams and the uncontroverted proof at trial supports that allegation, the district court must sentence under Sec. 841(b)(1)(B). The trial court did not err in sentencing the defendant.

In view of the foregoing, the Court held that the evidence in this case was sufficient to support the defendant's conviction for possession with intent to distribute 16 ounces of heroin and his conviction of possession with intent to distribute 1 gram of heroin. The Court affirmed these convictions. The evidence was not sufficient, however, to support the defendant's conviction for possession with intent to distribute one ounce of heroin. The Court therefore, reversed this conviction and the sentence imposed for it. Finally, the Court affirms the other sentences imposed on the defendant by the district court.

If you feel that the evidence used against you is insufficient to support your conviction of the crime of possession with intent to distribute heroin, you need the help of a New York Intent to Distribute Attorney and New York Heroin Possession Attorney in order to have your conviction reversed. New York Criminal Attorney will stand by you and defend your case. Call us at Stephen Bilkis and Associates for free consultation.

October 8, 2012

Man Receives Life Sentence for Distributing Heroin

In this drug offense, petitioner was a 21 year old heroin addict. On September 18th, two agents of the Sheriff's Department of Louisiana, accompanied by a paid informant, and encountered petitioner. Aware of petitioner’s addiction, they asked him whether he had any heroin. He answered that he did not but agreed to "score a bundle" for them. This jargon describes the purchase of 25 packets of individual doses of heroin, a retail transaction. Petitioner telephoned his "connection" (i.e. his supplier), the agents provided the funds to enable him to make the purchase and he left to accomplish the transaction. He returned with 22 packets. The agents took 19 and allowed him to retain three.

Some months later, a New York Criminal Lawyer said that petitioner was arrested, tried and convicted of distributing heroin. Petitioner testified at trial. He did not deny the facts set forth above, but contended that he was entrapped. He admitted that his addiction required five to six packets of heroin each day, but he was not able to afford that much. He paid $10 to $12 per packet. He was employed as a carpenter earning $3 per hour, but he did not work steadily. He admitted that he had previously been convicted of two felonies, burglary and theft by fraud. His wife testified that, while she also worked, her husband was a good provider for her and their one child. A New York Criminal Lawyer said that petitioner was sentence to life imprisonment without parole for distributing heroin.

The issue in this case is whether petitioner’s sentence is grossly disproportionate to his crime as to contravene the Eighth Amendment's prohibition of cruel and unusual punishments.
The relevant Supreme Court authority which the Court must apply consists of two decisions. In the first of these, the 1980 case, the Court held that a life sentence imposed after a third non-violent felony conviction passed muster under the Eighth Amendment. Just over three years later, however, in a 1983 case, the Court declared that a life sentence passed after seven felony convictions did not. Nor is this obvious comparative imbalance in number of convictions redressed by examining the crimes themselves, for the 1980 case three had been truly non-violent credit card fraud, forgery, and theft by false pretenses while numbered among the 1983 case seven felonies were three burglaries and a third-time conviction for drunk driving. Yet the Court majority in the 1983 case maintained strenuously that its result was not inconsistent with the 1980 case. How can the two decisions be reconciled?

According to the 1983 case majority, the distinction rests partly upon the fact that the 1980 case punishment was as here imposed not by the judge but by the legislature, and partly upon the troubling factor in today's case: no parole. The majority instances the first distinction, like the second, in a footnote. Granting relief in today's case, as in the 1980 case, would require overturning the judgment of the legislator.

As for the second distinction, the 1983 case majority, apparently stung by the dissent's accusation that it was flouting the recent precedent of the 1980 case, observed: the 1980 case did reject a proportionality challenge to a particular sentence. But since the Court like the dissent today offered no standards for determining when an Eighth Amendment violation has occurred, it is controlling only in a similar factual situation. A New York Drug Possession Lawyer said here the facts are clearly distinguishable. Whereas the 1980 case was eligible for a reasonably early parole, at age 36, was sentenced to life with no possibility of parole. Thus, we glean from footnotes the two distinctions between the 1980 and 1983 cases offered by the Court, that overturning the 1980 case sentence would have required questioning a legislative judgment, and that parole was available to the 1980 case but not to the 1983 case. Applying to petitioner’s case at bar, one cuts one way, the other another.

With all deference, the Court finds the criteria offered of little assistance. The first of them the Court's direction to compare the deed to the punishment assessed seems to us little more than a direction to engage in proportionality analysis. The other two are offered by the Court simply as criteria which "may be helpful" or "useful": the sentences imposed for other crimes by the same jurisdiction as that which imposed the sentence under review and those imposed for the same crime by other jurisdictions. The Court commenced its analysis by applying the two "discretionary" standards as best it can to petitioner’s crime and punishment.

The first of the discretionary criteria invites us to test the consistency and rationality of the indigenous legislature's scheme of punishment. When we do so, we find that Louisiana classifies heroin distribution with second degree murder, aggravated rape, and aggravated kidnapping. A New York Sex Crimes Lawyer said first degree murder can be more severely punished (death), or can receive the same punishment as these. Next in order of severity come such crimes as intentionally killing a child during delivery (life imprisonment at hard labor); forcible rape (up to forty years at hard labor, at least two without possibility of parole); and aggravated arson (six to twenty years at hard labor, two without possibility of parole). Thus, the pyramid of severity of offenses, as viewed by the Louisiana legislature, commences at the top as follows: First degree murder, Second degree murder, aggravated rape and aggravated kidnapping, heroin dealing. Killing child during delivery, forcible rape, and aggravated arson.

Turning to the second discretionary criterion, a comparison of petitioner’s sentence with those imposed for heroin dealing by other jurisdictions, we are asked to determine whether his sentence is within the general range of punishments deemed appropriate by vastly differing legislators treating of widely disparate situations. Life imprisonment is the maximum penalty for the distribution of narcotics in a substantial number of states. Even so, it must be conceded that parole is usually available in these jurisdictions without Louisiana's requirement of a prior commutation of the sentence to a term of years. It thus appears that, among the States of the Union, Louisiana exacts the most severe penalty for heroin dealing. The United States, however, prior to the Sentencing Reform Act, authorized one even more severe for dealing in significant amounts of certain specified, dangerous narcotics: life imprisonment, with parole in no circumstances whatever. Such sentences are also required by the Sentencing Guidelines for aggravated crimes involving trafficking in substantial amounts of heroin or certain other controlled substances and of multiple offenses involving such trafficking.

It thus appears that petitioner’s punishment, while quite severe by American standards, is not one that is bizarre or outlandish. No one seriously disputes that his was a serious, not a minor, crime or that, while his conviction was his first for drug trafficking, he was in fact a regular trafficker. The United States itself has provided for the sentence imposed upon petitioner in trafficking cases involving multiple offenses or complications. More, in many jurisdictions petitioner’s criminal record would have qualified him as a habitual offender; nor does his $50 to $70 a day heroin habit, noted in our earlier opinion en banc, support a view that he is a minor offender. To the contrary, the record supports the inference that this five or six packet daily habit would, at the time of his crime in 1975, have required him to arrange at least two "bundle" sales per day. At that time, a 25-packet "bundle" went for $175; thus in 1975 petitioner was dealing $350 in heroin per day or more than $125,000 per year. As of 1975, this was a significant amount of heroin to pump into Louisiana's veins.

And so, having sought refuge in the Court's discretionary standards and having found little succor there, we return to its central command: that, in the name of the Eighth Amendment, we permit or forbid the Louisiana legislature to exact an (in effect) mandatory life sentence without parole of anyone found guilty of dealing in heroin. Hard cases make bad law, as the legal adage has it; and petitioner’s case is a hard one. At age 21, with a wife and a child, he went up for life at state expense because he was caught contributing to what seems generally agreed to be our country's major domestic problem: the sale and use of hard drugs. He was a carpenter who worked at his trade from time to time. He was young; and his precocious prior crimes were in all probability, as we have recognized connected with his appetite for drugs.

In this instance, the tiger trap has sprung on a sick kitten; and the point that Louisiana doubtless wished to make by punishing drug dealers in a signal manner finds a pathetic exemplar in the hapless petitioner. Even so, and for several reasons, it is by no means clear to us that because of this we are justified in tampering with Louisiana's attempts to bring its critical narcotics problem under control. In the first place, to do so would clearly contravene at least the spirit and language of the 1980 case opinion, a decision that the 1983 case Court insisted remains good law.

A life sentence for the crime of distributing heroin serves substantial state interests in the same manner that state interests were served by a life sentence for recidivism in the 1980 case. The state could reasonably treat heroin distribution as a serious crime equivalent to crimes of violence. It could conclude: The drug seller, at every level of distribution, is at the root of the pervasive cycle of drug abuse. Measured thus by the harm it inflicts upon the addict, and, through him, upon society as a whole, drug dealing in its present epidemic proportions is a grave offense of high rank. Petitioner willingly participated in the system of distribution, knowing the effects of the drug he procured.
In the second, invalidating petitioner’s sentence would require a substantial extension of the 1983 case. Time and again in that opinion, as we note above, the Court minimized offenses referring to them as minor and emphasizing that despite their comparative insignificance they had received the severest punishment imposable at that time in South Dakota for any offense whatever. In the same breath, however, the Court placed repeated heroin dealing in the category of "very serious offenses," going on in a footnote to observe that "no one suggests that it may not be applied constitutionally to fourth-time heroin dealers or other violent criminals." It is one thing for a court such as we to contemplate an extreme case such as the felonizing of overtime parking, striking down such an action as outlandish, and quite another for us to interfere in the various gradations of punishment specified by the legislator for crimes which no one disputes are serious ones and to do so on Constitutional grounds, at that. We may be competent to contemplate outrageous disproportion and declare that it cannot be; certainly, however, we are not equipped, nor do our procedures lend themselves to equipping us, with the factual knowledge and common sense of what is proportional, what punishments should be administered for particular offenses, and along what general lines the positive legislative attack on criminality should proceed.
Thus, it is perfectly consistent for us to conclude that according to our lights petitioner’s punishment was too severe, was not well proportioned to his crime, but that according to the Constitution's ban on "cruel and unusual" punishment petitioner’s punishment was not disproportionate to his crime. Finally, for whatever it may be worth, we do not lack sympathy for petitioner; and, in our view, his sentence is a harsh one indeed. The fact remains, however, that certain offenses are so sufficiently serious as to merit severe punishment regardless of who commits them.
And so we come to the end of our survey. From it we deduce that Louisiana's penalty for heroin trafficking is very likely the most severe of any American jurisdiction, although less so than that of several foreign states, and that insofar as we are capable of comparing such diverse matters it is not disproportionate to those exacted by Louisiana for crimes of comparable seriousness.
Plainly the judgment of the Louisiana Legislature, grounded in the legislators' intimate knowledge of local conditions, is that the best way to deal with the state's narcotics problem is to serve notice on all and sundry that dealing in any amount of certain specified, especially-noxious drugs carries the risk of life imprisonment a "life" imprisonment which, like one imposed under the new Federal Sentencing Guidelines, is authentically for life. As we observed in our former en banc opinion in this case, the Court upheld life sentence for recidivism "because the imposition of a life sentence served an obvious and substantial state interest and hence was not, in fact, grossly disproportionate."
The same is true of the sentence in this case. To be sure, petitioner’s sentence is more severe than the 1980 case, but so was his crime. In addition, petitioner’s sentence is the same as that stricken down by the Court in the 1983 case, but crimes were all characterized by the Court as minor, while that of petitioner is thought to be such by no one. If Louisiana's hands are to be tied in the face of the present assault on its society and citizens by the drug menace, some other Court will have to do it. We decline to do so. Accordingly the Court held that the judgment is affirmed.
If you are convicted of heroin distribution, seek the representation of a New Orleans Heroin Attorney and New Orleans Drug Crime Attorney in order to assist you in the handling of your trial. At Stephen Bilkis and Associates we have competent New Orleans Criminal Attorney to help you. Call us.

October 7, 2012

Defendant Brings an Action for Unjust Conviction

The State of New York appeals from an order, inter alia, denying its motion for summary judgment dismissing the claim against it on the ground that claimant fails to meet the statutory criteria to maintain an action for wrongful conviction.

A New York Criminal Lawyer said the issue in this case is whether claimant is entitled to his action for wrongful conviction.

The Court said that, to maintain an action for unjust conviction against the State within the ambit of Court of Claims Act 8-b(3)(b)(ii), "claimant must establish by documentary evidence that his judgment of conviction was reversed or vacated, and the accusatory instrument dismissed" on one of the grounds stated in CPL 440.10(1)(a), (b), (c), (e), or (g). As pertinent to the facts of this case, claimant must show that: "(b) the judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor". As he alleges no prosecutorial misconduct, in order to proceed, claimant must demonstrate that the court employed "duress, misrepresentation or fraud" in obtaining his plea of guilty to the reduced charge. A New York Criminal Lawyer said the statutory pleading requirements are explicit: The claim shall state facts in sufficient detail to permit the court to find that claimant is likely to succeed at trial in proving that (a) he did not commit any of the acts charged in the accusatory instrument or his acts or omissions charged in the accusatory instrument did not constitute a felony or misdemeanor against the state, and (b) he did not by his own conduct cause or bring about his conviction. The claim shall be verified by the claimant. If the court finds after reading the claim that claimant is not likely to succeed at trial, it shall dismiss the claim, either on its own motion or on the motion of the state.

The documentary evidence submitted in connection with the claim includes the record of the proceedings in the criminal prosecution underlying this action, conducted in Supreme Court, New York County. Claimant entered a plea of guilty to the reduced charge of attempted rape in the first degree in satisfaction of indictment, charging him with rape in the first degree, sodomy in the first degree and sexual abuse in the first degree. Three weeks after it was entered, claimant moved to vacate his plea on the ground that it "was involuntary and was taken only because of the enormous pressure put upon me by former legal aid counsel and his supervisor from the legal aid society." The supporting affidavit further alleges that, from the outset, claimant had told his Legal Aid attorney, "I did not want to hear from him about taken a plea that I believed my innocence could and would be proven in court." Claimant describes the performance of his attorneys as "coercive and also ineffective", and asserts that counsel should have withdrawn from claimant's defense. Significantly, the affidavit makes no mention of any coercion on the part of the court.

Claimant’s portrayal of events in general, and particularly those surrounding the entry of his guilty plea, is distorted and self-serving. A Nassau County Sex Crimes Lawyer said an examination of the circumstances culminating in the motion to vacate his plea demonstrates that claimant's allegations of coercion, ineffective representation and unfair surprise are contradicted by the record.

At this juncture, claimant conferred with defense counsel, following which he entered a plea of guilty. As noted, claimant's ensuing motion to vacate his guilty plea was grounded on the pressure alleged to have been applied by his Legal Aid lawyers, not by the court. Similarly, in its order ultimately vacating the plea, Supreme Court determined that "counsel's reluctance, derelictions or incompetence made his client unfit to properly and fairly consider the plea offered, or consider it from a fair and sound position." The Court of Claims, however, selectively quoting from the colloquy set forth above, concluded that "claimant satisfies paragraph (b) of 440.10.1 of the Criminal Procedure Law for the purposes of 8-b of the Court of Claims Act." In other words, the Court of Claims found that Supreme Court's remarks constitute "duress, misrepresentation or fraud on the part of the court".

For purposes of this action against the State, claimant alleges that the original offer of 3 to 6 years in exchange for a guilty plea to a reduced count was withdrawn at the last minute; that he was unfairly surprised by the new offer of 4 to 8 years; that he had insufficient time to consider the plea; that it was always his intent to proceed to trial; that his waiver of the right to trial was ineffective because he was not aided by effective counsel upon entering his plea; and that his freedom of choice was overcome by the court's threat to impose a sentence near to the maximum should he be convicted after trial. However, the record of the proceedings before Supreme Court does not support claimant's account.

As of March 6, 1991, the adjourned date for trial, claimant had been contemplating the entry of a guilty plea in exchange for a sentence of 3 to 6 years since July of 1990, a period of some eight months. His first remark that "the D.A. doesn't want to stand by the original offer of three to six" confirms as much. Moreover, claimant's strenuous objection in response to the revocation of that offer is completely at odds with the representation made in his moving affidavit, in which claimant alleges telling counsel "I did not want to hear from him about taken a plea." The argument now advanced by claimant that he was unfairly surprised by the withdrawal of the People's original offer is inconsistent with the representation, made upon entry of the plea that "we really never communicated because I thought the thing was going to trial." It is also contradicted by claimant's insistence, in his brief, that he "consistently maintained his innocence of the charge and sought to be tried by a jury."

Logically, if it had been claimant's steadfast intention to proceed to trial, the proffered sentence--whether 3 to 6 years or 4 to 8--should have made no difference. In any event, a court does not apply duress by requiring that a defendant elect between proceeding to trial and entering a plea of guilty to whatever reduced charge is offered by the People, especially when the defendant has been afforded ample opportunity to consider his alternatives. A Queens Sex Crimes Lawyer said at a minimum, this includes the adjournment from March 4, the date originally set for hearing and trial, and two hours on March 6, the date the plea was entered. Claimant's subsequent representation, at sentence, that "I got one minute to make a decision" is a gross distortion of the record.

Claimant's attempt to exploit the perceived differences with his attorney to derive a monetary award from State coffers should be similarly rejected. Whatever strategy defense counsel may or may not have formulated to defend claimant against the charge of rape, claimant's own strategy is apparent to delay trial as long as possible. When confronted with the commencement of hearings, claimant professed a need for time to consider the People's offer of a plea to obtain an adjournment. When no further adjournment could be obtained, he entered a plea. Immediately after pleading guilty, claimant moved to vacate the plea, now professing a long-standing and steadfast intention to establish his innocence at trial. Claimant thus elevated indecision to an art form, delaying and ultimately denying justice while stating no cognizable defense to the charge against him.

As Supreme Court stated before its epiphany, "The defendant is knowledgeable about the court system. He has a number of arrests and convictions. He's not a stranger to it." What is truly lamentable is that the tactics utilized by claimant--delay, distort and disrupt--have proven to be remarkably effective, not only in preventing a trial of this matter but in ultimately securing the dismissal of the indictment against him. As Supreme Court comprehended all too well, the complaining witness had no desire to testify in open court, especially after the passage of time allowed her to put the experience behind her. In the absence of any other witness, it was impossible for the People to go forward with the prosecution of the rape charge. Claimant would now extend his victory by exacting a monetary award from the State.

The affirmation in opposition to the State's motion to dismiss the claim and in support of claimant's cross motion for summary judgment asserts that his mental condition rendered involuntary the entry of his plea and the waiver of the right to trial. Quoting Supreme Court's words, it contends that "his 'agitated state of mind' rendered claimant 'unfit' and precluded a knowing and voluntary waiver. Such grounds demonstrate the mental disease claimant suffered at the time of the plea proceedings, grounds enumerated under the Act pursuant to CPL 440.10(l)(e)." Whether claimant's entry of a guilty plea was the product of intimidation that produced an "agitated state of mind", to use Supreme Court's words, or merely the consequence of a calculated strategy by a manipulative defendant intent upon postponing trial indefinitely is central to our consideration of this appeal. Claimant does not suggest that, in weighing the sufficiency of his claim, this Court is required to draw every factual inference in his favor. To the contrary, even at the pleading stage, the statutory standard of sufficiency of a claim for unjust conviction and imprisonment is whether the claimant can demonstrate the likelihood that he will be able to establish his innocence and lack of contribution to his conviction. In any event, this Court is not required to accept claimant's rendition of events when his account is directly contradicted by the record.

Vacillation between entering a plea and proceeding to trial was a strategy claimant employed for eight months prior to pleading guilty, and it was promptly resumed only a few weeks later by his motion to vacate that plea.

This Court can now add that the purpose of the statute is not to provide a windfall to a criminal defendant who is sufficiently experienced with the judicial process to exploit it to his own advantage.

The Court held that claimant has failed to meet the statutory criteria to pursue this claim for unjust conviction. First, he has not established coercion on the part of the court. Second, if the People cannot establish claimant's guilt in the absence of the complaining witness, neither can claimant show that he will be able to demonstrate his innocence for purposes of satisfying the statutory prerequisite to suit. Granted, the test does not require documentary evidence of innocence at this preliminary stage of the proceedings.

Nevertheless, it is appropriate to dismiss suits such as this where the claimant can point to no means by which he might be able to meet the strict condition imposed for recovery of damages--that innocence be established "by clear and convincing evidence". Contrary to claimant's contention, the dismissal of the indictment against him does not serve to demonstrate that he is innocent; it merely indicates that, without the testimony of the complaining witness, the People are unable to establish his. Third, his guilty plea was merely part of a strategy to delay trial. Finally, ineffective assistance of counsel is not a basis for recovery under the statute.

From the record before this Court, it is clear that claimant's chosen strategy of delay, distort and disrupt, and not any pressure applied by Supreme Court or counsel, culminated in the entry of his guilty plea.

Accordingly, the order of the Court of Claims of the State of New York, County of New York, which denied defendant's motion to dismiss the claim and which granted so much of claimant's cross motion for summary judgment as sought leave to amend his claim, should be reversed, on the law and the facts, without costs, and the claim dismissed.

Ineffective assistance of counsel is not a basis for recovery under the statute. If you feel that your counsel is ineffective, seek the help of a New York Rape Attorney and/or New York Criminal Attorney. At Stephen Bilkis and Associates, we can assure you that you will be represented by our competent and effective counsel of your choice.

October 7, 2012

Defendant Challenges Territorial Jurisdiction

On this proceeding, the state presented evidence about a pharmacologist who was a member of a conspiracy to procure heroin. A New York Criminal Lawyer said the pharmacologist and his accomplices were guilty of attempted criminal possession of a controlled substance based on a series of events that commenced in the state. Even if the jury found him guilty of both the crime, on appeal, he challenges the state’s exercise of territorial jurisdiction over the second offense only.

The evidence revealed that the leader of the conspiracy was a man. Through a wiretap surveillance of the telephone line to the leader’s residence, the law enforcement authorities discovered that the leader was raising $120,000 to pay a courier fee to obtain a large quantity of heroin to the state. The intercepted conversations cryptically identified the various players in the proposed drug exchange. The state theorized that the pharmacologist's role in the project was to test the purity of the heroin.

The leader and another individual discussed the pharmacologist’s availability for the project. Upon receiving a telephone call advising that the pharmacologist had been located. Thereafter, a woman used the leader's telephone to make airline reservations for three men to fly at 8:00 p.m. that evening and all of them were under the same surnames. The law enforcement authorities observed the pharmacologist together with two other men aboard the flight. At the request of an investigator, a state’s troop followed the activities of the three men. After registering at the airport's hotel under aliases, they were seen entering and leaving each other's rooms during the next 24 hours.

The leader called the other man, who was with the pharmacologist, to ask if they had made contact with the drug courier. A New York Drug Crime Lawyer said when the man stated that the connection had not yet been accomplished, the leader asserted that he would page the individual himself and indicated he was bringing the courier fee that day.

Later that day, the leader arrived with a woman and met with the men at the hotel. Undercover officers saw the woman in the lobby restaurant during the time interval.

At 9:30 p.m., the leader paged a special agent, an undercover officer of the states drug enforcement agency, who was posing as the drug courier with whom the group was negotiating the drug exchange. The special agent returned the leader's call using the telephone number displayed on his pager. During the conversation, the leader directed the special agent to contact the man at the hotel to arrange the sale. The special agent did as he was instructed and, in the course of his conversation with the man at the hotel, he agreed to call him in the morning to arrange the meeting. A Nassau County Drug Possession Lawyer said the man also expressed a need to change a hotel. Therefore, the following morning, two men and the pharmacologist checked out of the hotel and registered as guests at a nearby inn. The special agent and the man scheduled the exchange that day at the inn.

The enforcement officers recorded a telephone conversation via the wiretap of the leader's residence at which a woman advised the leader of the time and location of the meeting. The leader directed the woman to call him after the exchange and indicated that all he needed to say was he was on his way home.

Less than an hour later, wearing a transmitting device, the special agent met the woman in the lobby of the inn and the two men proceeded to the woman's room. Telling the special agent to wait for him, the woman went to the pharmacologist's room, retrieved a green and red paper bag, and returned to the special agent to display the contents of the bag which was $120,000 in cash. The special agent then retrieved the drugs from a vehicle in the parking lot, returning immediately to the woman's room where he exhibited several packages containing approximately 3.5 kilograms of heroin. The woman declared his intent to return home that night with the drug, hoping that he and the special agent could do a lot of dealing in the future. Indicating the drugs would be sold in the city directly to narcotics users, the woman suggested if he and his friends were in a position to buy as much heroin as the special agent's contacts could supply.

The woman removed small samples of the drugs from each package and left with the money and the samples, claiming he would return after the purity of the drug had been tested. A few minutes later, the woman come back, visibly upset, announcing to the special agent that he had seen someone suspicious in the hotel stairwell. At trial, one of the plainclothes officers involved in the surveillance effort testified that he accidentally encountered the woman in the stairwell.
After receiving assurances from the special agent that he had not been accompanied by anyone, the woman again left his hotel room and went to the pharmacologist's room, which was located on a different floor of the hotel. A Queens Drug Possession Lawyer said about 20 minutes later, the woman rejoined the special agent and terminated the deal on the basis that the heroin had been tested but was of insufficient purity. He referred to two tests that had been performed, an acid and a burn or temperature test, claiming the narcotic had failed both. Although the transaction was cancelled, the woman told the special agent he would call him later that evening.

Soon thereafter, the pharmacologist, a man and the woman checked out of the hotel and boarded a courtesy van destined for the airport. When they alighted at an airport terminal, they were arrested. The pharmacologist was carrying $80,000 in cash, the man and the woman had $20,000 each. In addition, the man was found in possession of an electric burner, coffee pot, thermometer, copper wire and other materials that could be used to test the purity of heroin. Two containers of mineral oil of a type that could be used for the drug testing were found in the hotel room vacated by the pharmacologist.

The criminal proceedings were commenced against the leader, the woman, the two men and the pharmacologist. Each of them pleaded guilty, but the pharmacologist proceeded to a jury trial. In addition to evidence of the events articulated, the state admitted portions of one of the man's plea allocution in which he acknowledged that, had the events gone as planned, the heroin was to be transported to the city.

Based on records, under penal law, a person is guilty of an attempt to commit a crime when, with intent to commit a crime, he or she engages in conduct which tends to effect the commission of such crime. A person is guilty of criminal possession of a controlled substance in the first degree when he or she knowingly and unlawfully possesses four or more ounces of a narcotic drug.

The pharmacologist’s remaining argument, that reversal is warranted due to the submission of a written decision sheet which mirrored the legal text of the state's jurisdictional theories, is not properly for the court’s review. Although the pharmacologist objected to the trial court's failure to include in the decision sheet an additional jurisdictional theory not offered by the state. Consequently, the court ordered to affirm the appellate division decision.

Securing our family against crime is not only one of the hardest but also one of the most important jobs to do nowadays. We need to protect them from the wrong influence of friends and from people who act negligently because of drug use. If an unfortunate thing occurs such as your child getting involved in a drug activity or crime, you can ask assistance from the NYC Drug Crime Attorney or NY Heroin Lawyers. Stephen Bilkis and Associates also offer the services of New York City Criminal Lawyer for your heroin related legal disputes.

October 7, 2012

Plaintiff Contends Insufficient Evidence for the Charges Against Him

In this drug crime case, defendant was convicted after a jury trial of criminal possession of a controlled substance in the third degree and unlawful possession of marijuana. A New York Criminal Lawyer said on this appeal, defendant contends that his conviction for criminal possession of a controlled substance in the third degree should be reversed because the People failed to present legally sufficient evidence showing his intent to sell four small packets of heroin found in his pocket.

A New York DWI Lawyer said that, viewed in the light most favorable to the prosecution, the evidence presented at trial established that at approximately 1:00 A.M. on July 21, 2007 the clerk at the store located on Main Street in the Village of Hudson Falls, Washington County called the police to report that someone was outside the store selling drugs. She placed that call after two separate patrons of the store so informed her. One of those patrons displayed to her what appeared to be a bag of marihuana.

The Patrolman responded to the call. On several occasions earlier that night between 11:00 P.M. and 1:00 A.M. the Patrolman had observed defendant, with whom he was already familiar, standing outside the store. the patrolman said when he arrived at the store in response to the clerk’s call, the Patrolman observed defendant coming out of the store with a six-pack of beer. The Patrolman approached defendant and accused him of selling drugs. At Patrolman’s urging, defendant produced a sock containing seven small bags of marihuana. The Patrolman then searched defendant, discovering four individual packets of heroin in his pocket.

The defendant appealed from a judgment of the County Court of Washington County, rendered February 22, 2008, upon his verdict convicting him of the crimes of criminal possession of a controlled substance in the third degree and unlawful possession of marihuana.

The issue in this case is whether defendant’s conviction should be reversed on the ground that the People failed to produce legally sufficient evidence showing his intent to sell four small packets of heroin found in his pocket.

The Court said that, as charged here, the crime of criminal possession of a controlled substance in the third degree requires proof that defendant possessed the heroin with the intent to sell it. In that regard, the People presented no direct proof that defendant sold or attempted to sell heroin to any individual. The said the Patrolman did not testify to observing such a transaction, nor did the clerk. And, notably, although the clerk testified that she had observed a male standing outside the door for about half an hour and that she saw him speak to several people whom she described as behaving nervously, she was not able to describe the man at trial not even his race and she was unable to identify defendant as the man in question.

Nor is there legally sufficient evidence from which to infer defendant's intent to sell heroin. A Nassau County DWI Lawyer said at the time of his arrest, defendant was carrying no cash beyond a few coins. o evidence was presented that he possessed a weapon or any paraphernalia commonly associated with the sale of drugs. And, significantly, no testimony established that the small quantity of heroin found in his possession was inconsistent with personal use.

Although the absence of proof of defendant's intent to sell the heroin compels us to conclude that the evidence was not legally sufficient to support a conviction for criminal possession of a controlled substance in the third degree, the Court finds that the People did present legally sufficient proof of defendant's knowing and unlawful possession of heroin to support a conviction for the lesser included offense of criminal possession of a controlled substance in the seventh degree. Accordingly, the Court modifies the judgment of conviction by reducing defendant's conviction for criminal possession of a controlled substance in the third degree to a conviction for criminal possession of a controlled substance in the seventh degree.

If you are involved in a drug crime involving heroin possession, and the evidence against you is insufficient to support your conviction, you need the help of a New York Drug Crime Attorney and New York Heroin Possession Attorney in order to defend your case properly. Washington Criminal Attorney at Stephen Bilkis and Associates can assist you. Call us for free legal advice.

October 6, 2012

Defendant Claims He was Denied a Right to a Speedy Trial

In this drug offense, petitioner was a 21 year old heroin addict. On September 18th, two agents of the Sheriff's Department of Louisiana, accompanied by a paid informant, and encountered petitioner. Aware of petitioner’s addiction, they asked him whether he had any heroin. He answered that he did not but agreed to "score a bundle" for them. A New York Criminal Lawyer said this jargon describes the purchase of 25 packets of individual doses of heroin, a retail transaction. Petitioner telephoned his "connection" (i.e. his supplier), the agents provided the funds to enable him to make the purchase and he left to accomplish the transaction. He returned with 22 packets. The agents took 19 and allowed him to retain three.

Some months later, a New Orleans Heroin Possession Lawyer said that petitioner was arrested, tried and convicted of distributing heroin (heroin possession). Petitioner testified at trial. He did not deny the facts set forth above, but contended that he was entrapped. He admitted that his addiction required five to six packets of heroin each day, but he was not able to afford that much. He paid $10 to $12 per packet. He was employed as a carpenter earning $3 per hour, but he did not work steadily. He admitted that he had previously been convicted of two felonies, burglary and theft by fraud. His wife testified that, while she also worked, her husband was a good provider for her and their one child. A New Orleans Drug Crime Lawyer said that petitioner was sentence to life imprisonment without parole for distributing heroin.

The issue in this case is whether petitioner’s sentence is grossly disproportionate to his crime as to contravene the Eighth Amendment's prohibition of cruel and unusual punishments.
The relevant Supreme Court authority which the Court must apply consists of two decisions. In the first of these, the 1980 case, the Court held that a life sentence imposed after a third non-violent felony conviction passed muster under the Eighth Amendment. Just over three years later, however, in a 1983 case, the Court declared that a life sentence passed after seven felony convictions did not. Nor is this obvious comparative imbalance in number of convictions redressed by examining the crimes themselves, for the 1980 case three had been truly non-violent credit card fraud, forgery, and theft by false pretenses while numbered among the 1983 case seven felonies were three burglaries and a third-time conviction for drunk driving. Yet the Court majority in the 1983 case maintained strenuously that its result was not inconsistent with the 1980 case. How can the two decisions be reconciled?

According to the 1983 case majority, the distinction rests partly upon the fact that the 1980 case punishment was as here imposed not by the judge but by the legislature, and partly upon the troubling factor in today's case: no parole. The majority instances the first distinction, like the second, in a footnote. Granting relief in today's case, as in the 1980 case, would require overturning the judgment of the legislator.

As for the second distinction, the 1983 case majority, apparently stung by the dissent's accusation that it was flouting the recent precedent of the 1980 case, observed: the 1980 case did reject a proportionality challenge to a particular sentence. But since the Court like the dissent today offered no standards for determining when an Eighth Amendment violation has occurred, it is controlling only in a similar factual situation. An NY Criminal Lawyer said were the facts are clearly distinguishable. Whereas the 1980 case was eligible for a reasonably early parole, at age 36, was sentenced to life with no possibility of parole. Thus, we glean from footnotes the two distinctions between the 1980 and 1983 cases offered by the Court, that overturning the 1980 case sentence would have required questioning a legislative judgment, and that parole was available to the 1980 case but not to the 1983 case. Applying to petitioner’s case at bar, one cuts one way, the other another.

With all deference, the Court finds the criteria offered of little assistance. The first of them the Court's direction to compare the deed to the punishment assessed seems to us little more than a direction to engage in proportionality analysis. A New York Sex Crimes Lawyer said the other two are offered by the Court simply as criteria which "may be helpful" or "useful": the sentences imposed for other crimes by the same jurisdiction as that which imposed the sentence under review and those imposed for the same crime by other jurisdictions. The Court commenced its analysis by applying the two "discretionary" standards as best it can to petitioner’s crime and punishment.
The first of the discretionary criteria invites us to test the consistency and rationality of the indigenous legislature's scheme of punishment. When we do so, we find that Louisiana classifies heroin distribution with second degree murder, aggravated rape, and aggravated kidnapping. First degree murder can be more severely punished (death), or can receive the same punishment as these. Next in order of severity come such crimes as intentionally killing a child during delivery (life imprisonment at hard labor); forcible rape (up to forty years at hard labor, at least two without possibility of parole); and aggravated arson (six to twenty years at hard labor, two without possibility of parole). Thus, the pyramid of severity of offenses, as viewed by the Louisiana legislature, commences at the top as follows: First degree murder, Second degree murder, aggravated rape and aggravated kidnapping, heroin dealing. Killing child during delivery, forcible rape, and aggravated arson.
Turning to the second discretionary criterion, a comparison of petitioner’s sentence with those imposed for heroin dealing by other jurisdictions, we are asked to determine whether his sentence is within the general range of punishments deemed appropriate by vastly differing legislators treating of widely disparate situations. Life imprisonment is the maximum penalty for the distribution of narcotics in a substantial number of states. Even so, it must be conceded that parole is usually available in these jurisdictions without Louisiana's requirement of a prior commutation of the sentence to a term of years. It thus appears that, among the States of the Union, Louisiana exacts the most severe penalty for heroin dealing. The United States, however, prior to the Sentencing Reform Act, authorized one even more severe for dealing in significant amounts of certain specified, dangerous narcotics: life imprisonment, with parole in no circumstances whatever. Such sentences are also required by the Sentencing Guidelines for aggravated crimes involving trafficking in substantial amounts of heroin or certain other controlled substances and of multiple offenses involving such trafficking.
It thus appears that petitioner’s punishment, while quite severe by American standards, is not one that is bizarre or outlandish. No one seriously disputes that his was a serious, not a minor, crime or that, while his conviction was his first for drug trafficking, he was in fact a regular trafficker. The United States itself has provided for the sentence imposed upon petitioner in trafficking cases involving multiple offenses or complications. More, in many jurisdictions petitioner’s criminal record would have qualified him as a habitual offender; nor does his $50 to $70 a day heroin habit, noted in our earlier opinion en banc, support a view that he is a minor offender. To the contrary, the record supports the inference that this five or six packet daily habit would, at the time of his crime in 1975, have required him to arrange at least two "bundle" sales per day. At that time, a 25-packet "bundle" went for $175; thus in 1975 petitioner was dealing $350 in heroin per day or more than $125,000 per year. As of 1975, this was a significant amount of heroin to pump into Louisiana's veins.
And so, having sought refuge in the Court's discretionary standards and having found little succor there, we return to its central command: that, in the name of the Eighth Amendment, we permit or forbid the Louisiana legislature to exact an (in effect) mandatory life sentence without parole of anyone found guilty of dealing in heroin. Hard cases make bad law, as the legal adage has it; and petitioner’s case is a hard one. At age 21, with a wife and a child, he went up for life at state expense because he was caught contributing to what seems generally agreed to be our country's major domestic problem: the sale and use of hard drugs. He was a carpenter who worked at his trade from time to time. He was young; and his precocious prior crimes were in all probability, as we have recognized connected with his appetite for drugs.
In this instance, the tiger trap has sprung on a sick kitten; and the point that Louisiana doubtless wished to make by punishing drug dealers in a signal manner finds a pathetic exemplar in the hapless petitioner. Even so, and for several reasons, it is by no means clear to us that because of this we are justified in tampering with Louisiana's attempts to bring its critical narcotics problem under control. In the first place, to do so would clearly contravene at least the spirit and language of the 1980 case opinion, a decision that the 1983 case Court insisted remains good law.
A life sentence for the crime of distributing heroin serves substantial state interests in the same manner that state interests were served by a life sentence for recidivism in the 1980 case. The state could reasonably treat heroin distribution as a serious crime equivalent to crimes of violence. It could conclude: The drug seller, at every level of distribution, is at the root of the pervasive cycle of drug abuse. Measured thus by the harm it inflicts upon the addict, and, through him, upon society as a whole, drug dealing in its present epidemic proportions is a grave offense of high rank. Petitioner willingly participated in the system of distribution, knowing the effects of the drug he procured.
In the second, invalidating petitioner’s sentence would require a substantial extension of the 1983 case. Time and again in that opinion, as we note above, the Court minimized offenses referring to them as minor and emphasizing that despite their comparative insignificance they had received the severest punishment imposable at that time in South Dakota for any offense whatever. In the same breath, however, the Court placed repeated heroin dealing in the category of "very serious offenses," going on in a footnote to observe that "no one suggests that it may not be applied constitutionally to fourth-time heroin dealers or other violent criminals." It is one thing for a court such as we to contemplate an extreme case such as the felonizing of overtime parking, striking down such an action as outlandish, and quite another for us to interfere in the various gradations of punishment specified by the legislator for crimes which no one disputes are serious ones and to do so on Constitutional grounds, at that. We may be competent to contemplate outrageous disproportion and declare that it cannot be; certainly, however, we are not equipped, nor do our procedures lend themselves to equipping us, with the factual knowledge and common sense of what is proportional, what punishments should be administered for particular offenses, and along what general lines the positive legislative attack on criminality should proceed.
Thus, it is perfectly consistent for us to conclude that according to our lights petitioner’s punishment was too severe, was not well proportioned to his crime, but that according to the Constitution's ban on "cruel and unusual" punishment petitioner’s punishment was not disproportionate to his crime. Finally, for whatever it may be worth, we do not lack sympathy for petitioner; and, in our view, his sentence is a harsh one indeed. The fact remains, however, that certain offenses are so sufficiently serious as to merit severe punishment regardless of who commits them.
And so we come to the end of our survey. From it we deduce that Louisiana's penalty for heroin trafficking is very likely the most severe of any American jurisdiction, although less so than that of several foreign states, and that insofar as we are capable of comparing such diverse matters it is not disproportionate to those exacted by Louisiana for crimes of comparable seriousness.
Plainly the judgment of the Louisiana Legislature, grounded in the legislators' intimate knowledge of local conditions, is that the best way to deal with the state's narcotics problem is to serve notice on all and sundry that dealing in any amount of certain specified, especially-noxious drugs carries the risk of life imprisonment a "life" imprisonment which, like one imposed under the new Federal Sentencing Guidelines, is authentically for life. As we observed in our former en banc opinion in this case, the Court upheld life sentence for recidivism "because the imposition of a life sentence served an obvious and substantial state interest and hence was not, in fact, grossly disproportionate."
The same is true of the sentence in this case. To be sure, petitioner’s sentence is more severe than the 1980 case, but so was his crime. In addition, petitioner’s sentence is the same as that stricken down by the Court in the 1983 case, but crimes were all characterized by the Court as minor, while that of petitioner is thought to be such by no one. If Louisiana's hands are to be tied in the face of the present assault on its society and citizens by the drug menace, some other Court will have to do it. We decline to do so. Accordingly the Court held that the judgment is affirmed.
If you are convicted of heroin distribution, seek the representation of a New Orleans Heroin Attorney and New Orleans Drug Crime Attorney in order to assist you in the handling of your trial. At Stephen Bilkis and Associates we have competent New Orleans Criminal Attorney to help you. Call us.

October 5, 2012

Court Discusses Mental Hygiene Law

The complainant brought this action to recover damages for injuries he claims to have suffered as a result of being knocked down as he attempted to board a bus operated by the accused. At the time of jury selection, the complainant moved to preclude the accused from offering evidence of or in any way calling the jury's attention to the facts of the complainant’s incontestable past use of heroin and his current participation in a methadone treatment program. A New York Criminal Lawyer said at the jury coordinating part, the judge determined that the accused would be precluded from any reference to the complainant’s current use of methadone or his participation in the treatment program. He reserved to the trial judge the issue of whether the complainant’s past use of heroin was admissible in the liability phase of the trial.

Following jury selection and prior to opening, the court granted the balance of the complainant’s motion and precluded the accused from mentioning or offering any evidence of the complainant’s past use of heroin. Given that there is a paucity of reported case law regarding the admissibility of such evidence in civil proceedings, the court files the decision to memorialize its opinion.
The motion does not question whether a complainant's use of heroin is admissible in the damages phase of a civil trial where the jury is assessing a variety of health and life issues relating to the complainant, such as life expectancy. In that context, with an appropriate foundation, testimony regarding the complainant’s heroin use would surely be admissible. Nor is it about whether the complainant was under the influence of heroin at the time of the accident so that his powers of perception or recollection might actually have been impaired by his heroin habit; nor whether the complainant was under the influence of heroin at the time of his testimony. The use of heroin by the complainant in those circumstances would be admissible even in the liability phase to impeach his credibility as a witness. Indeed, in all of those situations, proof of heroin use and addiction even by extrinsic evidence would be proper. The lone issue decided by the court on the branch of the motion reserved to it was whether the complainant’s past use of heroin was admissible as an act of moral depravity offered only to attack his credibility as a witness.

With the triviality of the advocacy dissipated, neither side could nor did take issue with the black letter rule which states that a witness may be examined with respect to specific immoral, vicious or criminal acts which have a bearing on the witness's credibility. Founded on such rule, the accused opposed the preclusion arguing that the complainant’s heroin addiction and use over a long period of his life tended to establish moral depravity and, therefore, those acts were relevant and proper impeachment of his credibility as a witness. A New York Criminal Lawyer said that same black letter rule, of course, acknowledges the power of the trial court to exercise discretion with respect to the nature and extent of bad act cross-examination. Over the accused person’s strong exception, the court exercised its discretion to preclude proof of the complainant’s addiction and use of heroin which, incidentally, would have included reference to the complainant’s hospital records if extrinsic proof of the claimed past bad acts became necessary.

There is little doubt that the complainant's heroin habit qualifies as a specific immoral, vicious and/or criminal act which could have a bearing on the complainant's credibility. The court, nonetheless, exercised its discretion to preclude the accused from offering such evidence or making such reference before the jury on two grounds. The first rests on the synergy of the proposed evidence with other evidence to be offered by the accused to impeach the complainant's credibility. Not unexpectedly for someone who, at a young age, ruined his entire life as a slave to heroin, the complainant has the extraordinary criminal record of a petty thief and drug abuser. Among the many, but hardly exhaustive of them, some 30 criminal convictions, including two for criminal possession of a controlled substance (Drug Possession), were to be (and were) offered to impeach the complainant's credibility. In this context, the proposed use of the complainant's heroin habit to attack his credibility further either in argument or by confrontation on the stand was determined by the court to be both cumulative and highly prejudicial. Provident discretion impelled its preclusion.

Another ground is by logical extension of a judge’s prior determination that reference to the complainant’s participation in a methadone treatment program was to be precluded. Had the court denied the balance of the motion in limine (a motion made before the start of a trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in a trial), the complainant would have been presented with the choice of keeping the current participation in a methadone treatment program confidential, as the previous judge’s had ruled, but only at the expense of foregoing the opportunity to rehabilitate his credibility in the eyes of the jury by showing that he had given up his life of moral depravity for a life of new hope in treatment.

More importantly, the judge’s ruling relied on Mental Hygiene Law provides that notwithstanding any other provision of law including but not limited to the election law, no person's rights as a citizen of the United States or of the state of New York shall be forfeited or abridged because of such person's participation in chemical dependence programs, treatment facilities or services.

A New York Sex Crimes Lawyer said such participation shall include but is not limited to the certification as substance dependent of a person to the care and custody of the office under previously existing provisions of law. The fact, proceedings, application, or treatment relating to a person's participation in chemical dependence programs, treatment facilities, or services shall not be used against such person in any action or proceeding in any court.

Obvious from these words is the enactment by the Legislature of a strong public policy that participation in a drug treatment program is to be confidential and that no right shall be forfeited or abridged on account of program participation.

It is clear to the court, therefore, to give full intended effect to the strong public policy of New York State, that even if the past use of heroin were the only basis to attack the credibility of the complainant, his current participation in a methadone treatment program would preclude any reference to or offer of proof of past heroin use when offered solely for the purpose of impeaching his credibility on the grounds of his immoral, vicious or criminal acts of moral depravity.

Accordingly, as a matter of public policy, a trial court in a civil action should exercise its discretion to preclude reference to or the offer of evidence regarding the past heroin use and addiction of a witness who is at the time of his testimony participating in a chemical dependency treatment program where such reference or offer is made solely to impeach the credibility of that witness.

For all the foregoing reasons, the complainant’s motion to preclude reference or the offer of proof by the accused, either extrinsically or directly, of the past use of heroin by the complainant for the sole purpose of impeaching his credibility on the witness stand was granted.

Our past will always play a role in our present and future that is why it is important that we live clean. Once we made a mistake, the society that we are in seldom gives a second chance even though we already suffered for the consequences of our wrongdoings. If you want to prove your innocence, consult the NY Drug Crime Lawyers together with the NYC Criminal Attorneys from Stephen Bilkis and Associates. When you are involved in a drug possession dispute, call the New York City Heroin Attorney.

October 4, 2012

Court Discusses Larceny Charges

A man went to a house in a residential neighborhood. It was eleven thirty in the evening and all the three residents of the house were fast asleep. The man went up the roof and was preparing to enter the house through a bedroom with an open screened window.

A New York Criminal Lawyer said tne resident of the house was fast asleep in the bedroom as the man was trying to enter through the screen window. The noise made by the man outside the window woke the resident of the house. He had a .25 caliber hand gun in a drawer in his bedside table. He cried aloud and said “Who’s there?” When the man crouched down in an attempt to hide, the occupant fired a warning shot.

Another occupant called an emergency hotline and the man was unable to get down from the roof until the police got there. The man was charged with attempted breaking entering with intent to commit grand larceny. It was alleged that the three occupants in the house had cell phones, laptop computers and other valuables inside the house which could have been what the prowler intended to take.

The man pleaded not guilty and he moved for a trial without a jury. A New York Criminal Lawyer said his request was granted and evidence was presented against him. The occupant who fired the warning shot testified against him. The criminal trial court found the man guilty beyond reasonable doubt of a lesser included offense of attempted breaking and entering with intent to commit petit larceny.

The man appealed from the judgment of conviction. He claims that his conviction for attempted breaking and entering with intent to commit petit larceny is not supported by the evidence presented by the prosecution. He claims that no proof was presented of the specific intent that he intended to commit petit larceny.

The only question before the Court is whether or not the specific intent to commit petit larceny was proved.

The Court held that the intent to commit petit larceny can be inferred from the circumstance of each case. Here, the circumstances which convinced the trial court judge that the man intended to commit petit larceny was duly proved. The man went to the house in the dead of night. He used the cover of darkness to try to gain entrance to the house. He chose a vulnerable spot in the house, a second floor window that was opened and was protected only by a screen. The second floor window was accessible only by climbing up from the side of the house. The man then crouched down and tried to open the window. A New York Drug Possession Lawyer asked why would anyone go through all that trouble if he did not intend to commit larceny? The man had no business being atop a roof trying to gain entry into a house through an open window if he did not have the specific intent to commit the crime of petit larceny.

There was also proof that the three occupants of the house had valuables in the house. They had household appliances, jewelry and gadgets which would have been easy to take and asport. In this case, the trial judge who heard the evidence had the sole discretion to determine if specific intent can be inferred from the circumstances proved by the prosecution.

The Court held that the trial court did not err in inferring specific intent to commit larceny.
Have you been charged with attempted breaking and entering with intent to commit larceny?

You need the advice of a Florida Criminal Lawyer who can explain to you the nature of the charge against you, whether it involve sex crimes, theft or drug possession. A Florida Criminal attorney can help you gather evidence to prove that you had no commit larceny. At Stephen Bilkis and Associates, their Florida Criminal lawyers are willing to represent you. Call or visit any of the offices of Stephen Bilkis and Associates in Florida state area and speak with any of the Florida Criminal lawyers on their staff.

October 3, 2012

Court Discusses the Elements of Burglary

Sometime on July 14, 1995 at 11:30 pm two police officers were in a police cruiser and they were parked with the headlights turned off. They were observing two men outside an auto mechanic’s garage which was already closed for the night. A New York Criminal Lawyer said the two policemen were observing two men who were circling around a parked Chevrolet outside the auto mechanic’s garage.

A little later, the two men took out tools from a tool box they carried and they started removing the hub caps and the lug nuts of the parked car. A while later they were able to remove all the four tires of the car. They took the tires and the hub caps and loaded these into the trunk of their own car. Before they could start their engine the police officers came towards them and declared them arrested.

At the police station, the police officers charged the men for burglary, for possession of tools for burglary and for burglary of a conveyance. A New York Lawyer said the two men pleaded not guilty and they also filed a motion to dismiss the two charges for burglary and the possession of burglary tools.
Their motion to dismiss was denied and trial ensued. At the trial, the two accused did not bother to present evidence to contradict the evidence of the prosecution. Instead, the two accused produced evidence that tended to prove that given the circumstances of the case as these have been proved by the prosecution, the charges of burglary and of possession of burglary tools cannot be sustained. After the trial, the court gave instructions to the jurors that they can either acquit the two accused; or, find them guilty of grand theft; or, find them guilty of the included offense of petit theft.

The jury found the two men guilty of grand theft. To this, the two accused moved for a judgment of acquittal. This motion was also denied and the trial court sentenced the two accused to serve one year imprisonment for the burglary charge; another year for possession of burglary tools and the time that they had served was credited toward the penalty for the charge of petit theft.

The two accused appealed. Their appeal hinges on their contention that no burglary could have been committed as they did not enter the car for the purpose of committing a crime. The only question before the District Appeals Court is whether or not the conviction for burglary and for possession of burglary tools can be sustained given the facts of the case proven at trial.

The Court held that burglary was defined by law as the crime committed when a person enters a dwelling place or a house with the intent of committing a crime. This was the old definition from common law and this has been adapted by the courts in Florida. Later in 1961, the law was amended: burglary was defined as the crime of entering a dwelling place, house or conveyance or motor vehicle for the purpose of committing a crime.

Here, the two accused did not enter the vehicle. A New York Drug Possession Lawyer said they stripped the vehicle of its tires and hubcaps. They cannot be said to have entered the vehicle. They did not ride in the Chevrolet. They simply detached the hubcaps; they took a lug wrench and removed the tires of the car. These acts constitute the crime of larceny and not burglary.

The Court quashed the verdict of guilty and the decision of the jury and the case was remanded for further proceedings.

Were you charged with burglary, drug possession or sex crimes? You need assistance from a Florida Criminal Lawyer who shall explain to you exactly what the elements of the crime of burglary are. A Florida Criminal Attorney can help raise the issue that the facts alleged by the prosecution or not constitute elements of the crime charged. Come and speak with any of the Florida Criminal Attorneys from Stephen Bilkis and Associates.

October 2, 2012

Court Discusses Crime of Possession of a Controlled Substance

On this proceeding, the state presented evidence about a pharmacologist who was a member of a conspiracy to procure heroin. The pharmacologist and his accomplices were guilty of attempted criminal possession of a controlled substance based on a series of events that commenced in the state. Even if the jury found him guilty of both the crime, on appeal, he challenges the state’s exercise of territorial jurisdiction over the second offense only.

A New York Criminal Lawyer said the evidence revealed that the leader of the conspiracy was a man. Through a wiretap surveillance of the telephone line to the leader’s residence, the law enforcement authorities discovered that the leader was raising $120,000 to pay a courier fee to obtain a large quantity of heroin to the state. The intercepted conversations cryptically identified the various players in the proposed drug exchange. The state theorized that the pharmacologist's role in the project was to test the purity of the heroin.

The leader and another individual discussed the pharmacologist’s availability for the project. Upon receiving a telephone call advising that the pharmacologist had been located. Thereafter, a woman used the leader's telephone to make airline reservations for three men to fly at 8:00 p.m. that evening and all of them were under the same surnames. A New York Criminal Lawyer said the law enforcement authorities observed the pharmacologist together with two other men aboard the flight. At the request of an investigator, a state’s troop followed the activities of the three men. After registering at the airport's hotel under aliases, they were seen entering and leaving each other's rooms during the next 24 hours.

The leader called the other man, who was with the pharmacologist, to ask if they had made contact with the drug courier. When the man stated that the connection had not yet been accomplished, the leader asserted that he would page the individual himself and indicated he was bringing the courier fee that day.

Later that day, the leader arrived with a woman and met with the men at the hotel. Undercover officers saw the woman in the lobby restaurant during the time interval.

At 9:30 p.m., the leader paged a special agent, an undercover officer of the states drug enforcement agency, who was posing as the drug courier with whom the group was negotiating the drug exchange. The special agent returned the leader's call using the telephone number displayed on his pager. During the conversation, the leader directed the special agent to contact the man at the hotel to arrange the sale. The special agent did as he was instructed and, in the course of his conversation with the man at the hotel, he agreed to call him in the morning to arrange the meeting. The man also expressed a need to change a hotel. Therefore, the following morning, two men and the pharmacologist checked out of the hotel and registered as guests at a nearby inn. The special agent and the man scheduled the exchange that day at the inn.

The enforcement officers recorded a telephone conversation via the wiretap of the leader's residence at which a woman advised the leader of the time and location of the meeting. The leader directed the woman to call him after the exchange and indicated that all he needed to say was he was on his way home.

Less than an hour later, wearing a transmitting device, the special agent met the woman in the lobby of the inn and the two men proceeded to the woman's room. Telling the special agent to wait for him, the woman went to the pharmacologist's room, retrieved a green and red paper bag, and returned to the special agent to display the contents of the bag which was $120,000 in cash. The special agent then retrieved the drugs from a vehicle in the parking lot, returning immediately to the woman's room where he exhibited several packages containing approximately 3.5 kilograms of heroin. A New York Sex Crimes Lawyer said the woman declared his intent to return home that night with the drug, hoping that he and the special agent could do a lot of dealing in the future. Indicating the drugs would be sold in the city directly to narcotics users, the woman suggested if he and his friends were in a position to buy as much heroin as the special agent's contacts could supply.

The woman removed small samples of the drugs from each package and left with the money and the samples, claiming he would return after the purity of the drug had been tested. A few minutes later, the woman come back, visibly upset, announcing to the special agent that he had seen someone suspicious in the hotel stairwell. At trial, one of the plainclothes officers involved in the surveillance effort testified that he accidentally encountered the woman in the stairwell.

After receiving assurances from the special agent that he had not been accompanied by anyone, the woman again left his hotel room and went to the pharmacologist's room, which was located on a different floor of the hotel. About 20 minutes later, the woman rejoined the special agent and terminated the deal on the basis that the heroin had been tested but was of insufficient purity. He referred to two tests that had been performed, an acid and a burn or temperature test, claiming the narcotic had failed both. Although the transaction was cancelled, the woman told the special agent he would call him later that evening.

Soon thereafter, the pharmacologist, a man and the woman checked out of the hotel and boarded a courtesy van destined for the airport. When they alighted at an airport terminal, they were arrested. The pharmacologist was carrying $80,000 in cash, the man and the woman had $20,000 each. In addition, a New York Drug Possession Lawyer said the man was found in possession of an electric burner, coffee pot, thermometer, copper wire and other materials that could be used to test the purity of heroin. Two containers of mineral oil of a type that could be used for the drug testing were found in the hotel room vacated by the pharmacologist.

The criminal proceedings were commenced against the leader, the woman, the two men and the pharmacologist. Each of them pleaded guilty, but the pharmacologist proceeded to a jury trial. In addition to evidence of the events articulated, the state admitted portions of one of the man's plea allocution in which he acknowledged that, had the events gone as planned, the heroin was to be transported to the city.

Based on records, under penal law, a person is guilty of an attempt to commit a crime when, with intent to commit a crime, he or she engages in conduct which tends to effect the commission of such crime. A person is guilty of criminal possession of a controlled substance in the first degree when he or she knowingly and unlawfully possesses four or more ounces of a narcotic drug.

The pharmacologist’s remaining argument, that reversal is warranted due to the submission of a written decision sheet which mirrored the legal text of the state's jurisdictional theories, is not properly for the court’s review. Although the pharmacologist objected to the trial court's failure to include in the decision sheet an additional jurisdictional theory not offered by the state. Consequently, the court ordered to affirm the appellate division decision.

Securing our family against crime is not only one of the hardest but also one of the most important jobs to do nowadays. We need to protect them from the wrong influence of friends and from people who act negligently because of drug use. If an unfortunate thing occurs such as your child getting involved in a drug activity or crime, you can ask assistance from the NYC Drug Crime Attorney or NY Heroin Lawyers. Stephen Bilkis and Associates also offer the services of New York City Criminal Lawyer for your heroin related legal disputes.

October 2, 2012

Court Decides Heroin Possession Case

In this drug offense case, defendant was found in his apartment with 6¼ grams of heroin about twenty to thirty minutes after a package containing 13 grams of heroin was delivered by mail to his apartment. Customs and postal inspectors had discovered the heroin in the package when it had arrived in the country at San Francisco. A New York Drug Crime Lawyer said the package was mailed from Thailand and addressed to defendant’s residence in Daytona Beach, Florida. The postal authorities arranged a controlled delivery of the package to defendant’s residence.

A Jacksonville Heroin Possession Lawyer said that, about twenty to thirty minutes after this controlled delivery had taken place, four officials, one a postal inspector, and another a customs agent, and the other two, Daytona Beach police detectives, entered defendant’s apartment under a valid search warrant. They found defendant in a bedroom with 6¼ grams of heroin on a coffee table in front of him. They conducted a search to find the remaining heroin. During this search, they found thirty packets of heroin, each wrapped in aluminum foil and containing a mixture which included approximately one milligram of heroin, in a drawer of a dresser in a bedroom across the hall from the room where defendant had been found. It was established at trial that these "dime bags” small packets wrapped in aluminum foil containing about one milligram of heroin are commonly used in passing heroin on the streets. The authorities also found some butts of marijuana cigarettes in the same bedroom drawer. While the authorities were searching the apartment, defendant remarked to them, referring to the thirty "dime bags", "I bet you didn't think I could package it up that quick".

A Jacksonville Intent to Distribute Lawyer said that, the indictment charged possession with intent to distribute only the 6¼ grams found on the coffee table. The Government relied upon the 30 "dime bags" to prove that defendant had the requisite intent to distribute. A New York Criminal Lawyer said its theory was that the heroin found in packages suitable for street distribution indicated that defendant was a dealer in heroin; that he had received the 13-gram package delivered in the mail for the purpose of selling or distributing most or all of the 13-gram quantity; and that he therefore intended to distribute the 6¼ gram quantity found on the coffee table.

A Jacksonville Heroin Possession Lawyer said that, defendant advanced a different theory of the evidence at trial. He testified that he was himself addicted to heroin and that he intended to use the entire 13-gram quantity himself. He said that the 30 "dime bags" found in the drawer were not packaged with any heroin from the 13-gram package. He alleged that he had had that entire heroin on the coffee table in front of him at the time he heard that the police were coming; and that when he heard of their arrival, he had wadded up the tinfoil with the rest of the heroin on it and had thrown it into a corner of a closet. He explained the remark he had made about "packing it up that quick" by saying he had made it in order to deflect the authorities from their search before they found the wadded-up foil containing the remaining heroin.

Defendant’s first contention concerns the sufficiency of the evidence. He argues that the evidence was consistent with his theory that he was going to keep the heroin for his personal consumption; thus, he says, the jury "could not" have "excluded" this "hypothesis of innocence" as "unreasonable". This, he argues, means that the evidence was insufficient to support the verdict.

A Queens said the issue in this case is whether the evidence used against defendant is insufficient to support his conviction.

The Court held that the argument is without merit, because it reflects a misunderstanding of the standard by which this Court reviews the sufficiency of the evidence to support a guilty verdict.
The standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences there from failed to exclude every reasonable hypothesis other than guilty, but whether the jury might so conclude. As we understand it, the appellant's argument is only that his theory that he intended to use the heroin himself is but "one hypothesis of innocence", which he is suggesting might "satisfy this Court's sense of reasonableness"; but we have often held that this is not enough to permit us to reverse the verdict. We must uphold a guilty verdict if there is any "theory of the evidence from which the jury might have excluded every hypothesis except guilt beyond a reasonable doubt". Without recounting every piece of evidence leading to this conclusion, the Court concludes from our review of the evidence that this standard was met in this case.

The appellant's second contention is a dual one. He contends that the trial judge erred in admitting testimony (a) about the thirty packets of heroin found in the dresser drawer; and also (b) about the marijuana cigarette butts found in the drawer. Both, he argues, amounted to evidence of other crimes, and their introduction was therefore incurably prejudicial.

The Court disagrees. The evidence concerning the thirty packets of heroin was admissible to show intent, as we have already noted, and evidence of other similar crimes is admissible to show intent. The testimony concerning marijuana was not admissible to show intent, but its admission did not, in our view, constitute reversible error. The testimony was confined to two statements made by two of the participants in the search of defendant’s apartment. They amounted to no more than descriptions of what they saw in the bedroom drawer; they were mere statements of having observed the res gestae. Later in the trial, when the Government sought to introduce the marijuana butts as an exhibit, and to have a chemist testify that the substance had been chemically identified as marijuana, the trial judge excluded the exhibit and instructed the jury to disregard the chemist's testimony concerning marijuana. In this state of the record, we cannot hold that the brief allusions to marijuana in the testimony of the customs agent and police detective who searched the apartment were sufficiently prejudicial to require a new trial.

The principal objection to the charge to the jury concerns the trial judge's instruction that: if you should find, beyond a reasonable doubt, that the Defendant had knowing and intentional possession, as charged, the fact of such possession alone, of a large quantity and/or quality of heroin, unless explained to the satisfaction of the jury, by the evidence in the case, permits, but does not require the jury to draw the inference and find that the heroin was possessed with intent to distribute. A Nassau County Drug Possession Lawyer said the appellant notes that there is no authority for permitting an inference of intent to distribute merely from the fact of possession of heroin of a high quality alone, and that this instruction, read literally, would authorize just such an inference. He argues, therefore, that the trial judge committed reversible error in giving this charge.

The Court cannot escape the obvious: the quality of the drugs possessed, in conjunction with the quantity, is relevant to the inference to be drawn from possession of a large quantity. Possession of six grams of 99.5% pure heroin the purity of the heroin found in defendant’s possession obviously supports more strongly an inference of intent to distribute than does possession of heroin of, say, 5% purity. Here, the evidence was sufficient to establish that the heroin defendant possessed, given its quality and quantity taken together, was worth $60,000 on the street. The Court concludes that it was highly unlikely that, in the circumstances of this particular case, the effect of the instruction was to lead the jurors into thinking they could infer intent from the quality of the heroin alone. The Court finds no "strong probability that the instructions `taken as a whole were such as to confuse or leave an erroneous impression in the minds of the jurors'". A Queens Drug Possession Lawyer said the Court therefore finds that the particular instruction in question did not constitute reversible error. The appellant also objects to the sequence in which the judge's instructions were given, arguing that it tended to confuse the jury on the issue of intent, and to the failure of the trial judge to give a literal definition of intent. The Court finds these objections without merit. Accordingly, the Court held that judgment is hereby affirmed.

Heroin possession is a serious crime that may put you on jail for a long time. Seek for the legal advice of a New York Heroin Possession Attorney at Stephen Bilkis and Associates to handle your day in Court.

October 1, 2012

Defendant Claims Insufficiency of Evidence

In this case, the appellant was tried before the court without a jury and found guilty of the crime of breaking and entering a dwelling with intent to commit a felony, to-wit, grand larceny, and of the crime of grand larceny. A New York Criminal Lawyer said that separate sentences were imposed thereon for imprisonment for a period of three years, with provision for the sentences to be served concurrently.

On appeal therefrom, it was contended that the court erred in denying appellant’s motion for acquittal on the ground of insufficiency of the evidence, and further that it was error to impose more than one sentence.

Upon review of the case, the court found no reversible error therein.

On this record, the court rejected the appellant's contention of insufficiency of the evidence. The records bear that in addition to certain evidence pointing to guilt of the offenses, it was the feature that the appellant was found in possession of recently stolen property (being that taken from the residence), with no reasonable explanation thereof by him.

On Appeal, a New York Criminal Lawyer said the appellant argued that the two crimes involved in this case were facets of the same transaction, and that it was error to impose separate sentences therefor, as enunciated in Yost v. State, Fla.App.1971, 243 So.2d 469, 471,

In the said case, this court, citing an earlier decision of the Supreme Court and decisions of the district courts, said: 'In Florida, where an information contains more than one count, but each is a facet or phase of the same transaction, only one sentence should be imposed; and the sentence which should be imposed is for the highest offense charged.' The crimes to which that principle was applied there, unlawful sale of marijuana and unlawful possession of marijuana, by the evidence were shown to have been facets of the one transaction on a given date, in that the marijuana which was the subject of the charge of possession was that which was shown to have been the subject of the alleged unlawful sale.

The appellant also cited the case of Davis v. State, Fla.App.1973, 277 So.2d 300, and Edmond V. State, Fla.App.1973, 280 So.2d 449, both decided by the second district court of appeal. In the Davis case, with reference to a charge and conviction of the crimes of breaking and entering with intent to commit petit larceny, and petit larceny, the court said: 'As to the breaking and entering and petit larceny charges, it must be presumed that the perpetrator breaks and enters with a purpose and that the accomplishment of that purpose (the petit larceny) can only be classified as part of the same criminal act', and held sentence could be imposed for only one of said offenses. A New York Drug Possession Lawyer said in Edmond v. State, supra, the district court made a similar ruling where one had been charged and convicted of breaking and entering a building with intent to commit grand larceny and of the crime of grand larceny.

Upon review of the foregoing, the court held that the rulings enunciated in the foregoing cases cannot be applied in appellant’s case. A New York Sex Crimes Lawyer said the court held that the Supreme Court of Florida has held to the contrary, in Steele v. Mayo, Fla.1954, 72 So.2d 386. In recent decisions the Supreme Court stated that in order to preserve uniformity of the law throughout the state, a disagreement by a district court of appeal with a controlling precedent of the Supreme Court should not prompt a contrary ruling thereon by the district court, but rather an adherence to the controlling precedent, with the district court of appeal being free to express its reasons for advocating change in the precedent. This rationale was based on Hoffman v. Jones, Fla.1973, 280 So.2d 431, 434, and Gilliam v. Stewart, Fla.1974, 291 So.2d 593; and State v. Lott, Fla.1973, 286 So.2d 565.

The court held that the convictions for the two offenses mentioned may properly lead to separate sentences therefor. The sentences were affirmed by the court relying on the jurisprudence enunciated in Steele v. Mayo, supra.

Our New York Petit Larceny Lawyers from Stephen Bilkis and Associates are well-experienced in arguing and proving your case. Protect yourself and your loved ones by visiting any of Stephen Bilkis and Associates offices which are within New York Metropolitan area, including Corona, New York.

September 27, 2012

Court Decides if Prior Convictions Can Be Used to Impeach Defendant

This case is about an appellant who was adjudicated guilty, after a jury trial, for inciting a riot under Section 870.01(2), Florida Statutes (1981). A New York Criminal Lawyer said the appellant argued that the evidence presented by the prosecution was insufficient to support his conviction. Although the sufficiency of the proof presented a close question, after thorough review, the court held that the State did present a prima facie case and that a judgment of acquittal was not required.

The case however was reversed on the ground of evidentiary rulings as to prior convictions. The question concerns the impeachment of appellant under Section 90.610, Florida Statutes (1981), on the basis of two prior petit larceny convictions. The trial court ruled that these prior petit larceny convictions could be used for impeachment purposes and threatened to hold appellant in contempt if he took the stand and testified that he had not been convicted of a crime. Appellant did testify and on direct examination stated he had been convicted of a crime twice.

The old rules on Evidence provide that a witness was subject to being impeached with evidence of a prior conviction of any crime, excluding violations of a municipal ordinance. Jurisprudence prior to the amendment of the rules established that "a crime is a crime". A New York Criminal Lawyer said the argument that discrediting crimes must involve moral turpitude was expressly rejected.

Section 90.610, Florida Statutes (1981), as amended, now provides:

90.610 Conviction of certain crimes as impeachment.--

(1) A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment, with the following exceptions:

(a) Evidence of any such conviction is inadmissible in a civil trial if it is so remote in time as to have no bearing on the present character of the witness.

(b) Evidence of juvenile adjudications are inadmissible under this subsection.

(2) The pendency of an appeal or the granting of a pardon relating to such crime does not render evidence of the conviction from which the appeal was taken or for which the pardon was granted inadmissible. Evidence of the pendency of the appeal is admissible.

(3) Nothing in this section affects the admissibility of evidence under s. 90.404 or s. 90.608.

The foregoing amendments are identical with Federal Rule which has been uniformly interpreted as requiring that a conviction may not be used for impeachment purposes unless the prosecution demonstrates that the offense involved more than mere stealth. Elements of deceitfulness, untruthfulness, or falsification have been held necessary before the offense is relevant to credibility.

Jurisprudence dictates that when a statute is amended, the legislature intended the amended statute to have a meaning different from that accorded to it before the amendment. Further, a New York Drug Possession Lawyer said if a Florida statute is patterned after a federal law on the same subject, it will take the same construction in the Florida courts as its prototype has been given in the federal courts.

In light of these principles of statutory construction and the uniform construction given to Federal Rule of Evidence 609 by the federal courts, it can be concluded that the Florida Legislature intended a like interpretation for § 90.610(1), Florida Statutes (1978). Therefore, the court held that the simple crime of petit larceny may not be used for impeachment purposes unless the prosecution has demonstrated that such crime involves some element of deceit, untruthfulness, or falsification bearing upon the defendant's capacity to testify truthfully.

A New York Sex Crimes Lawyer said the court also ruled that the trial court erred in ruling that appellant's prior petit larceny convictions were admissible for impeachment without first requiring the prosecution to demonstrate that appellant's prior convictions were crimes of dishonesty within the meaning of Section 90.610, Florida Statutes (1981). In the face of an objection from defendant the state should have been required to go forward with proof as to the nature of the prior misdemeanor convictions.

The appellant's conviction was vacated and the matter remanded for new trial.

Our New York Petit Larceny Lawyers from Stephen Bilkis and Associates could establish your rights enshrined in the statute. It has convenient offices within New York Metropolitan area, including Corona, New York.

September 16, 2012

Defendant Questions Probable Cause in Arrest

Two known low-level drug dealers who sold marijuana were found shot in the apartment they shared. The police were investigating the murders. The police then questioned their known associates. A New York Criminal Lawyer said one of the murder victims’ known associates the police talked to admitted that he was in the apartment on the day before the murders and saw a man from the Caribbean buy half a pound of marijuana from the victims.

The known associate also told the police that the man from the Caribbean agreed to buy at least thirty kilos of a new shipment of marijuana from the murder victims. They agreed to meet the next day so that the man from the Caribbean can finally buy the marijuana. The police detective showed the known associate of the murder victims and he identified a picture of the man from the Caribbean.

The police detectives went in search of the man from the Caribbean and found him in an apartment. When the police were near the apartment door, they could smell the odor of marijuana. So the police detectives pounded on the door of the apartment. The man from the Caribbean came to th door. A New York Criminal Lawyer said the police detectives could smell the marijuana odor emanating from the open doorway of the apartment. They then asked the man from the Caribbean to step out of the apartment. They frisked him and handcuffed him. The officers asked him if there were any other occupants or residents in the apartment and the man from the Caribbean said that his brothers and his girlfriend were in there.

The police then shouted for those occupants to come out and four people, all of them under aged came out one by one from the apartment. They were also lined up against the wall, frisked and handcuffed. A New York Drug Possession Lawyer said all of them were brought to the police precinct for questioning. The officers then sealed the apartment and put a guard there while a search warrant was applied for and obtained so that the apartment could be searched. They found a brick of pressed and dried marijuana leaves weighing about one kilogram.

At the police precinct, the man from the Caribbean and his girlfriend were questioned not about the brick of marijuana found in the apartment but about the murder of the two low-level drug dealers the police were investigating. The man from the Caribbean at first refused to give a statement. The girlfriend, however, gave a statement. The police quickly gave the girlfriend the Miranda warnings which the woman promptly waived. She then gave a full statement implicating her boyfriend. Her statement informed the police that the man from the Caribbean went to the drug dealers’ apartment three times waiting for the shipment of marijuana he wanted to buy in bulk. When the shipment still had not arrived, there was an argument. The man from the Caribbean shot the two drug dealers.

The police then took the girlfriend’s statement and read it to the man from the Caribbean. He changed his mind and decided to give a statement. The police then gave him the Miranda warnings which he waived. He gave a statement which the police took down in writing. After the statement was written, the police officers asked the man from the Caribbean to read his statement and to go over it in case he wanted to add something. The man from the Caribbean added more information on another sheet of paper and signed that, too.

The man from the Caribbean and his girlfriend were charged with criminal marijuana possession and for the murder of the two drug dealers. All the brothers of the man from the Caribbean were released.

After the arraignment, the man from the Caribbean and his girlfriend sought to have excluded the brick of marijuana which was seized from his apartment for lack of probable cause; they also sought to exclude the statements made by them to the police. The only question before the Court is whether or not the object evidence and the statements should be excluded and deemed inadmissible into evidence.

The Court held that when the police arrived, they had no probable cause to suppose that the man from the Caribbean had committed a crime except as he was identified by one of the witnesses to the murder of the drug dealers as one of the last persons to see the drug dealers alive.

When the police officers arrived at the apartment and they smelled the odor of marijuana, they had probable cause to approach the apartment. They knocked and identified themselves and the man from the Caribbean answered the door. The apartment was dark and so the police acted reasonably when they asked the occupants to exit. The brick of marijuana cannot be excluded because it was seized by virtue of a search warrant.

The Court held that the police had no probable cause to suppose that the girlfriend was connected with the murder of the two drug dealers. They also had no probable cause to arrest the girlfriend for criminal marijuana possession. A New York Sex Crimes Lawyer said there was no proof that she owned it or was keeping it. Her arrest and the statements made by her to the police would therefore have to be excluded as statements made after an unlawful arrest. The statements were obtained when the police knowingly took advantage of the unlawful arrest of the girlfriend.

The man from the Caribbean was arrested with probable cause. The police had information that he had purchased marijuana from the murdered drug dealers. There were two statements made by the man at the time he was in custody at the precinct. He made oral statements prior to being given the Miranda warnings and the written statements were made after he was given the Miranda warnings. The oral statements are suppressed because he gave then without being Mirandized but the written statements are admissible as he had already been Mirandized and he waived his Miranda rights.

Have you been arrested by police officers who claimed to have smelled the odor of marijuana near your home? You need to ask for a Bronx Drug lawyer when you are placed in custody. A Bronx Drug Crime attorney will explain to you the nature of the charges against you. At Stephen Bilkis and Associates, their Bronx Drug Crime attorneys are willing to defend you. Their Bronx Drug Crime lawyers are willing to argue your innocence of the charges against you. Come and visit the office of Stephen Bilkis and Associates in the Bronx today.

September 16, 2012

Defendant Files Application for Resentencing

A man was convicted of having committed the crime of criminal possession of a weapon in 1993 and he was sentenced to serve one year in jail. In 1995, the same man pleaded guilty to a charge of federal racketeering and conspiracy. He served a prison term of six years.

In September 2003, the man was arrested by police officers who had been tailing and conducting surveillance on him. A New York Drug Crime Lawyer said he was seen selling one bag of heroin to another man. When he was arrested, the police officers frisked him and found eighteen other bags of heroin in the pocket of his jacket. He was charged with criminal heroin possession in the third degree. He was convicted by a jury and sentenced to a maximum prison term of twenty years and a minimum prison term of ten years.

He appealed but his appeal was denied after two years. In the meantime, the man had finished serving six years of his minimum prison term of ten years. While he was serving his prison term, the legislature of New York passed the Drug Reform Law. A New York Criminal Lawyer his new law aimed to reduce the prison sentences of low-level drug offenders by allowing them to apply for resentencing. If approved, they will be resentenced to a lower sentence provided that when the convicted felon applies for resentencing, he is currently in the custody of the Department of Corrections as he is serving a prison sentence; he was convicted of a Class B felony which was committed before the law was made effective; and the man was not convicted of another crime within the last ten years.

The man here applied for resentencing and the trial court that convicted him found that he met all the requirements of the law for resentencing. However, the district attorney opposed the motion for resentencing on the ground that the man had been convicted and sentenced for committing the crime of criminal possession of a weapon, a violent felony within ten years of committing the crime of criminal heroin possession. The issue before the trial court was when the ten year period should be counted from. The man’s motion for resentencing was denied by the trial court. He appealed the denial of his motion for resentencing.

A Nassau County Drug Possession Lawyer said the issue before the Supreme Court is whether or not the ten year period should be counted from the time of the commission of the offense or from the time of the filing of the motion for resentencing.

The Court held agreed that the man possessed all the requirements laid down in the Drug Reform Law. The only question is if his conviction for criminal possession of a weapon in 1993 bars his application for resentencing.

The Court held that the proper interpretation of the law must be in accordance with the purpose of the legislature in enacting the law. A Queens Drug Possession Lawyer said since the purpose of the law is to grant a lower sentence to those low-level drug felons who meet the requirements, then the interpretation must honor the legislative intent. The Court held that the ten-year period must be counted from the time of the filing of the application for resentencing. It cannot be reckoned from the date of the commission of the offense.

When a man is charged with commission of a criminal offense, he is presumed innocent until proven guilty. Thus, his guilt only becomes a fact upon his conviction, not upon the date of the commission of the crime.

Since the application for resentencing was filed in 2006, the commission of the crime of criminal possession of a weapon in 1993 is clearly beyond the ten-year period required by the law. Also, the Court noted that under the law, the man was also entitled to deduct the period of time he spent in jail to determine the ten year period. Thus, this holding is in accordance with the legislative intent.

Have you been convicted of two Class B drug felonies? Are you serving a sentence that is disproportionate to the crime you committed? Come and visit the offices of Stephen Bilkis and Associates and speak with any of their Bronx Drug Crime lawyers today.

September 15, 2012

Court Looks at Illegal Contraband Case

In this case, two police officers were on routine motor patrol in Bronx County when they observed a car with its trunk lock "popped out." They directed the driver of the car to stop. As the officers approached the car, a single passenger in the rear appeared to be fumbling with something. That passenger opened the rear door and attempted to flee. One of the officers grabbed him, and, after a struggle, succeeded in removing defendant's hand from his left front outer jacket pocket. The officer recovered a brown paper bag which, upon later discovery, contained cocaine of an aggregate weight of 8 7/8 ounces. A New York Criminal Lawyer said the motion court concluded that the evidence, before the Grand Jury, of defendant's knowledge of weight was legally insufficient to sustain the charge of criminal cocaine possession of a controlled substance in the first degree. It, therefore, reduced count one of the indictments from criminal possession of a controlled substance in the first degree to criminal possession of a controlled substance in the seventh degree. The Appellate Division affirmed.

The police stopped defendant for a traffic infraction while he was driving in Bronx County. A plastic bag containing 3 1/4 ounces and 3 grains of cocaine was recovered from the automobile. The motion court found no evidence of defendant's knowledge of the weight was presented to the Grand Jury. It reduced count one of the indictments from cocaine possession of a controlled substance in the second degree to criminal possession of a controlled substance in the seventh degree. It also dismissed count two of the indictment which charged criminal possession of a controlled substance in the third degree. The Appellate Division modified in the case by reinstating count two, and otherwise affirmed.

A New York Criminal Lawyer said that, in a joint memorandum which determined both Sanchez and Garcia, the Appellate Division noted that the trial court properly concluded that the evidence before the Grand Jury was insufficient to establish that defendants possessed the requisite knowledge of the weight of the substance they possessed. Regarding the defendant, the Appellate Division determined that the trial court erred by dismissing count two of the indictment charging defendant with criminal possession of a controlled substance in the third degree. The Court reasoned that intent to sell may be established by proof that a defendant possessed a significant quantity of drugs. Thus, as to the present case, the Appellate Division reinstated count two of the indictment. A Judge of this Court granted the People leave to appeal in both cases, and, in the present case, granted defendant leave to cross-appeal.

The People argued that the indictments were supported by sufficient evidence. A New York Drug Possession Lawyer said defendant Sanchez contends that the motion court properly reduced the first count of the indictment. The defendant claims that the indictment in his case was insufficient, and, additionally, urges that the Appellate Division erred by reinstating the count of his indictment for criminal possession of a controlled substance in the third degree.
The issue in these cases is whether the evidence before the Grand Jury was sufficient to support charges of criminal possession of contraband under People v. Ryan, 82 N.Y.2d 497, 605 N.Y.S.2d 235, 626 N.E.2d 51.

In Ryan, the Court determined that the Legislature did not intend to make the weight of a drug a strict liability element. The felony-weight offenses of possession of a controlled substance therefore contain an element of mental culpability as to the weight of the drugs possessed. Ryan requires that the People demonstrate sufficient legal evidence of a defendant's knowledge of the weight of prohibited drugs to sustain the cocaine possession charges in these cases.
Having made that ruling in Ryan, the Court is now called upon in these cases to perform the additional task that the Court was not required to undertake there: to survey permissible methods of proving a defendant's knowledge.

Knowledge, like other forms of mental culpability, typically is established directly by admission, circumstantially by conduct, or indirectly by contradictory statements from which guilt may be inferred. Where a defendant possesses illegal drugs, we have recognized that possession alone suffices to permit the inference that the possessor knows the nature of what is possessed, especially, but not exclusively if it is in the defendant's hands or vehicle or on the defendant's person or. Inferences of knowledge are rooted in probabilities based on experience and proof.

Where the inference to be drawn is that of weight as opposed to the bare fact that the substance possessed was an illegal drug possession alone does not readily support the conclusion that defendant was also aware that the drugs possessed were of a certain weight. In order to avoid over penalizing someone who "unwittingly possesses a larger amount of a controlled substance than anticipated", there generally must be additional evidence from which knowledge of weight in particular can be inferred. A New York Sex Crimes Lawyer said we emphasize that it is culpability for "unwitting" possession we seek to avoid. There may be instances where possession combined with other factors such as the substantial quantity of drugs possessed or the manner in which they are packaged supports the conclusion that defendant was aware of the weight of the drugs possessed.

"Handling" of drugs, contrary to the interpretation of some lower courts, is not limited to instances where the defendant manipulates the substance in the process of manufacture and packaging of drugs. It merely connotes sufficient contact with the substance to experience its weight to give rise to a probability defendant became aware of the weight of the drugs in his possession. Such contact need not lead to precise knowledge of weight in ounces or grams. One need not know the precise weight, in pounds and ounces, of a cantaloupe to know that it has a certain heft, and is heavier than an orange. When one is charged with discerning minuscule variations in weight, however assessing the difference in weight between two and seven grapes, for example presumptions break down. In many drug prosecutions, similarly, a defendant's level of culpability could increase drastically by the presence of milligrams above the statutory threshold. Presuming the defendant knew the weight of the drugs was just above as opposed to just below the statutory threshold is problematic. Possession alone could rarely be enough in such a close case.

Some cases are simpler than others. When drugs are packaged in vials, with roughly the same quantity in each vial throughout the drug dealing industry, cocaine possession of a specific number of vials of cocaine would generally give rise to an inference defendant knew he possessed that particular quantity of drugs. Where there is evidence of the price paid for a quantity of drugs, then there is evidence defendant knew its weight, since value is based on weight.

In People v. Sanchez there was more than mere possession of an indeterminate quantity of drugs. Sanchez had over eight ounces of cocaine on his person, more than twice the threshold amount for criminal possession of a controlled substance in the first degree. The evidence need not establish awareness, down to the last grain, of the precise weight of drugs in the defendant's possession. Possession of such a substantial quantity of drugs was evidence that he was aware he possessed at least half that amount, and thus was sufficient for the Grand Jury to indict.

In People v. Garcia, possession alone is not enough to establish knowledge of weight because the amount possessed was so close to the statutory limit of two ounces, and no other circumstances indicated familiarity with drugs that might lead to knowledge of weight. As the Court observed in Ryan, there may be instances where it is indeed difficult to show defendant's knowledge of the weight, but we cannot simply read the knowledge requirement out of the statute.

While the practical considerations of the difficulties in prosecuting drug possession cases may inform our interpretation of that element, there may be instances where the People will simply have to proceed with a lesser degree offense in order to make out a legally sufficient case. Where a minute quantity of drugs lifts the defendant over the threshold to a higher count of cocaine possession, possession of that greater amount may be unwitting. In that instance, there is legally insufficient evidence to support the element of knowledge of weight.

For these same reasons, the Court held that, the order of the Appellate Division, insofar as it reinstated Garcia's conviction of third degree possession with intent to sell, must be reversed. While defendant's possession of a "substantial" quantity of drugs can be cited as circumstantial proof of an intent to sell, it cannot be said as a matter of law that the quantity of uncut and unpackaged drugs possessed in this case permitted an inference that defendant intended to sell them. More than mere possession of a modest quantity of drugs, not packaged for sale and unaccompanied by any other sales like conduct, must be present for such an inference to arise. We caution, however, that we do not conclude here that possession of 3 1/4 ounces of cocaine, as a matter of law, cannot be a legally sufficient amount of contraband to support a sale charge. Our position is that, on these facts, there is no indication that defendant had knowledge of the weight of the drugs. None of the commonly known indicia of weight, such as telltale packaging, knowledge of value, or a voluminous appearance of the drugs was present here.

Accordingly, in People v. Sanchez, the Court held that, the order of the Appellate Division should be reversed and defendant's motion to reduce the charge in count one of the indictment denied. In People v. Garcia, the order of the Appellate Division should be modified by dismissing count two of the indictment and, as so modified, affirmed.

To sustain cocaine possession charges, there must be sufficient legal evidence of a defendant’s knowledge of the weight of prohibited drugs. If you have been charged of a similar crime, you need the advice of a Bronx Drug Crime Attorney. Contact Stephen Bilkis and Associates, we offer free consultations to discuss your legal rights.

September 15, 2012

Defendant Files Motion to Supress

The defendant in this case was charged with Rape in the first degree. He filed a motion to suppress any line-up or photograph identification. He argued that the result of a line-up conducted by the Suffolk County Police Department violated his rights under the Fourth, and Fourteenth Amendments of the United States Constitution, and his privilege against self-incrimination and his right to counsel as guaranteed by the Fifth, Sixth and Fourteenth Amendments of the United States Constitution.

A New York Criminal Lawyer said the Prosecution opposed defendant's motion, stating that " . . . defendant has failed to make any factual allegations which are required pursuant to § 710.60 subd. (1) of the CPL . . . " and therefore, "defendant's motion . . . should be denied as a matter of law pursuant to § 710.60(3)(b) of the CPL." However, in the alternative, the Prosecution asserted that defendant's constitutional rights were not violated.

In support of his motion, Defendant presented an affirmation made by his attorney upon information and belief, the source of his information and the grounds for his belief being the defendant. The affirmation states that the lineup conducted by the Suffolk County Police Department " . . . was conducted without defendant's consent or waiver of the presence of counsel . . . " and that defendant was " . . . physically forced to participate in a line-up without the benefit of his Miranda warnings or presence of counsel known to the members of the Sixth Precinct to be at that time, representing defendant."

With respect to defendant's assertion that his being included in a lineup violated his privilege against self-incrimination and that "the result" should be suppressed, the Court held that this privilege does not protect a person from being compelled to appear in a lineup. A New York Sex Crimes Lawyer said it is a well established jurisprudence that “neither the lineup itself nor anything shown by this record that defendant was required to do in the lineup violated his privilege against self-incrimination. The court recently reaffirmed that the privilege 'protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature . . . .'

In a landmark case, the Supreme Court of the United States stated that:

"Neither the lineup itself nor anything shown by this record that Wade was required to do in the lineup violated his privilege against self-incrimination. We have only recently reaffirmed that the privilege 'protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature . . . .'

With respect to Defendant’s claim that he was placed in a lineup without the benefit of counsel, despite the fact that "the police was aware that he was represented by counsel on a previous arrest and a pending matter in the County Court of Suffolk, the Court held that the right to the presence of counsel at identification viewings is mandated only after the filing of an accusatory instrument or after adversary judicial criminal proceedings have been initiated.

It is a well-settled jurisprudence that an identification made at a lineup conducted prior to the filing of an accusatory instrument and in the absence of counsel should not be suppressed where a defendant has been arrested for a crime committed while awaiting sentence in a previous action despite the fact that the police were aware that he was represented by counsel in that action.

In the present case, the lineup sought to be suppressed arose from a custodial situation which occurred several months after defendant was released from custody on the charge for which he was represented by counsel. A Nassau County Sex Crimes Lawyer said the defendant had for several months been released from custody on the charge for which he had an attorney when the lineup in question was conducted on a completely unrelated matter occurring after his release. Counsel's representation of defendant on the earlier charge should not be permitted to carry over to the lineup on the new charge. Otherwise, a Queens Sex Crimes Lawyer said any defendant having counsel on pending charges would have counsel for all crimes occurring while the original charges were pending.

Therefore, the Court held that Defendant was not entitled to counsel at the lineup in question, there having been no accusatory instrument filed and the defendant having been arrested for a sex crime occurring after he had been released on the earlier crime for which he had obtained representation.

Stephen Bilkis and Associates with its New York Rape Lawyers can assist you and your loved ones to assert your rights with legal expertise. It has offices within New York Metropolitan area, including Corona, New York.