New York Criminal Lawyer Blog

The Facts:

On 3 November 2007 at approximately 12:15 a.m., in front of 212 East 122nd Street in New York County, a police officer observed one of the defendants (herein co-defendant) hand to the minor defendant (herein defendant) one (1) clear bag containing marihuana in exchange for a sum of US currency. A New York DWI Lawyer said that immediately after the minor defendant walked away from the co-defendant, the officer observed the co-defendant make a cellular telephone call. Several seconds later, the minor defendant walked up to the co-defendant who then handed the defendant a sum of US currency.

Defendants were arrested and charged with a single count of Criminal Sale of Marihuana in the Fourth Degree, a drug crime.

Defendant is charged with criminal sale of marihuana under the theory that he acted in concert with his co-defendant.

Defendant has moved in an omnibus motion for dismissal on the ground of facial insufficiency; preclusion of statements and identification evidence; and disclosure of prior bad acts.
Defendant claims that the instant complaint is defective, vague and ambiguous. He argues that because of the gap in time between the alleged marihuana sale and cellular telephone call by the co-defendant and his arrival, it is insufficient to assume either that he was the person whom the co-defendant called, or that the money handed to him by the co-defendant was the proceeds of a marihuana sale.

Defendant also argues that the facts alleged are insufficient to demonstrate that he possessed the requisite intent to commit the crime.

Thus, defendant contends that the complaint against him must be dismissed for facial insufficiency.

The issue:

Were the defendant’s actions sufficient to justify a conviction?

The Court’s Ruling:

On the issue of Facial Sufficiency:

For an Information to be facially sufficient it must substantially conform to the formal requirements of CPL. The factual portion and any accompanying depositions must provide a reasonable cause to believe that the defendant committed the offense charged, as well as non-hearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant's commission thereof.

A New York DWI Lawyer said the requirement of non-hearsay allegations has been described as a much more demanding standard than a showing of reasonable cause alone; however, it is a much lower threshold than the burden of proof beyond a reasonable doubt. Thus, the law does not require that the information contain the most precise words or phrases most clearly expressing the charge but only that the crime and the factual basis be sufficiently alleged. Where the factual allegations contained in an Information give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading. Ultimately, the court must consider whether both the alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, establish every element of the crime charged.

Under the law, a person is guilty of criminal sale of marihuana in the fourth degree when he knowingly and unlawfully sells marihuana. To sell is defined as to sell, exchange, give or dispose of to another, or to offer or agree to do the same.

A person is criminally liable for conduct of another person constituting an offense if, when acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes or intentionally aids such person to engage in such conduct. The issue of whether or not the defendant is the actual perpetrator of the crime or an accomplice is irrelevant as there is no distinction between liability as a principal and criminal culpability as an accessory. Moreover, an accomplice may be criminally liable for the conduct of the principal even though the principal is not prosecuted or convicted of the offense.

Now, to establish that a defendant acted in concert in the context of a drug sale, the People must prove not only that the defendant shared the requisite mens rea for the underlying crime but that the defendant solicited, requested, commanded, importuned, or intentionally aided the principal in committing the crime. Integral to the inquiry is whether the defendant exhibited any calculated or direct behavior that purposefully affected or furthered the sale of the controlled substance. The key to the analysis is whether the defendant intentionally and directly assisted in achieving the goal of the enterprise; the illegal sale of a narcotic drug. Thus, a defendant who participates in and promotes a drug sale by acting as a steerer or lookout is criminally liable as an accessory to the sale. Similarly, a defendant's supervisory position as a screener of prospective buyers in a street level drug operation will support a finding of accessorial liability. While a defendant's lack of possession of the drugs or buy money will not negate his accessorial liability, the acts undertaken in relative innocence and without a conscious design to advance the principal's crime will not support a conviction for accomplice liability.

Accordingly, a defendant who acts as a helpful bystander in providing general information as to where drugs may be purchased is not an accessory to a drug sale. Neither is a defendant who accepts pre-recorded buy money from a seller one half hour after the drug sale criminally liable as an accomplice. Accomplice liability requires, at a minimum, awareness of the proscribed conduct and some overt act in furtherance of such.

Here, defendant is accused of receiving the purported proceeds of a marihuana sale from the co-defendant seconds after the co-defendant engaged in the alleged sale. It is reasonable to conclude from the facts that the defendant was the person whom the co-defendant called on his cellular telephone and that the money handed to the defendant by the co-defendant was obtained from the alleged sale of marihuana; the fact that the co-defendant called the defendant immediately after the sale and gave him the money earned from it further supports the inference that the co-defendant reported the sale to the defendant, and turned over the proceeds to him according to some agreement between them; when the defendant arrived seconds after the co-defendant called him, it demonstrates that although the defendant may not have been physically present during the sale, but he was close enough to know about it. Although it is not alleged that the defendant participated in the actual sale either as a steerer who directs buyers to particular sellers, or as a lookout who watches for police, or as a stash man who safeguards and handles the drugs, there is a reasonable cause to believe that the defendant was either a money man responsible for protecting the proceeds of the sale or a manager responsible for overseeing the street level operation.

The facts alleged circumstantially establish that the defendant was aware of the marihuana sale and committed an overt act in furtherance of it by collecting the proceeds of the sale from the co-defendant seconds after the sale was conducted. Therefore, defendant is criminally liable as an accomplice to the sale.

Since the instant complaint gives the defendant sufficient notice to prepare a defense and is adequately detailed to prevent the defendant from being tried twice for the same offense, it is facially sufficient. A Nassau County DWI Lawyer said while the People must still meet their burden of proof beyond a reasonable doubt at trial, their much lower burden at the pleading stage has been met.

Defendant's motion to dismiss for facial insufficiency must be denied.

On the issue of Preclusion of Statements and Identification:

The defendant's motion to preclude evidence of statements or identification testimony for which the People have not given proper notice is denied as premature since the People have not yet sought to introduce any such evidence.

On the issue of disclosure of Prior Bad Acts:

The People are directed to disclose all alleged uncharged vicious, immoral, or criminal acts which they intend to use at trial to impeach the defendant prior to commencement of jury selection as required in accordance with law.

If faced with criminal charges such as the above, contact Stephen Bilkis & Associates for a free consultation. Confer with our New York Criminal Lawyers. You may also want to discuss your case with our New York Drug Crime Lawyers for a more specialized attorney. Our legal experts are the best there is.

A married couple who are both hearing impaired had two children born on May 1995 and May 1992. The younger child has spina bifida. The two children were removed from the home and placed in foster care on June 20, 1996 by the Family Court after it found proof of medical neglect and domestic violence.

A New York DWI Lawyer said the husband assaulted the wife with a knife and this landed him in jail. When questioned by the family court if he assaulted his wife with a knife, he denied it. He claims that he and his wife argued and while they were arguing, he was holding a knife. He denied that he hurt her. While he was in jail, he did not see, call or visit his child. After he was released from jail, he still failed to visit, call or write his child. He failed to financially support his child.

The mother underwent therapy and counseling for depression and also for substance abuse. She admitted to her case worker that she had been using marijuana. When the case worker told her to get herself tested for substance abuse and also to submit herself for psychological evaluation, she refused.

The case worker also advised the mother to hunt for an apartment for herself as well as her two children. She tried to hunt for an apartment only once. A New York DWI Lawyer said the case workers referred the parents to agencies that could help them live independently despite their hearing disability. The mother missed nine out of ten counseling sessions.

The case workers for both the father and the mother testified that they explained to the parents the steps they need to take in order for their children to be returned to them.
Two years later, on August 3, 1998, the foster care placement was extended by order of the family court which also required the father to undergo domestic violence counseling and alcohol rehabilitation.

In September 2000, two petitions were filed in family court by the ACS asking that the parents be declared to have neglected their children and abandoned them and as a consequence, that their parental rights be terminated.

The parents opposed the petitions alleging that ACS took their children without justifiable cause; that ACS took their children without providing them sign language interpreters who could explain to them what was happening and why their children were going to be taken away from them. They claim that the family court and the case workers did not accommodate their hearing disability before making a finding of neglect.

The Court found that that both parents had neglected their children in failing to remain in contact with them during the time that the children were in foster care. A Nassau County DWI Lawyer said they did not call their children, rarely visited their children and they did not even write to their children. They showed a lack of interest in communicating with their children. The parents did not do their best to comply with the requirements set by the court for them to regain custody of their children. They showed an indifference to the welfare of their children.

The Court found that the parents refused to cooperate with their case workers and do not even acknowledge that they have substance abuse problems, domestic violence problems and parenting skills problems. They maintain that the ACS took their children without cause.
They show their lack of interest in regaining custody of their children by living outside the State of New York and by failing to contact the agency to inform them of their whereabouts and to give them their contact details.

The parents also showed that they have no permanent plan for their children. They failed to maintain jobs. They failed to get skills training in order to get jobs. They failed to provide housing for their children.

The Court found that while the parents may not have abandoned their children, they have permanently neglected them. Their parental rights were terminated.

A criminal charge for committing domestic violence has consequences on a parent’s parental rights. If there is proof that the domestic violence is also an evidence of neglect, a parent may lose his parental rights. A New York Domestic Violence Lawyer can help defend you against the charge of domestic violence and help you maintain your parental rights over your children. Whether you have been charged with domestic violence, a DWI, or a drug crime, it is important to ensure that your rights are protected. Call us today for a free consultation.

A former star of the a popular baseball team, was already in trouble for driving recklessly and forcing two cars off the road, even before he was arrested for DWI in February.

A New York Criminal Lawyer obtained evidence from the State Attorney’s Office in Florida that showed the defendant forced a truck off the road before his driving caused another car to take “evasive action and (go) totally onto the grass shoulder in order not to hit the sport utility vehicle head-on”.

This was from one of two drivers who claimed to see the SUV driving erratically. The 911 call revealed the driver felt the SUV operator had to be drunk or under the influence of drugs.

Later, the SUV was identified as the baseball player’s vehicle. It was reported to be by the side of the road with smoke pouring out of it.

Police found defendant next to the vehicle when they arrived. The athlete had blood shot eyes and “heavily slurred” speech, police sources reported. He was even drinking from a bottle of scotch when authorities were on the scene. The defendant initially resisted arrest, police explained.

Everyone deserves a fair trial, to be treated as anyone else in a court of law, no matter how famous they happen are, or the offense they have committed, including drug offenses, a sex crime or theft crime. Their treatment should be no better nor any worse than it would be for someone unknown to the general public. Sometimes, that’s easier said than achieved. Fortunately, there are skilled criminal lawyers whose job is making sure all sides are equal when it comes to a criminal trial.

Continue reading "Baseball Star Faces DWI and More" »

A Baiting Hollow bus accident resulted in one death and eight injuries. A collision on Sound Avenue between a tractor-trailer and a school bus for special-needs children was the cause of the tragedy.
A police chief told NY Criminal Lawyers the bus was from the Maryhaven Center of Hope in Port Jefferson and the tractor trailer was carrying sand. According to him, they sideswiped each other, their control hampered by the hilly, twisting two-lane road.
The Maryhaven Center of Hope has a program for people with special needs. According to one of their dispatchers, six students and two staff members were on the bus.
A spokeswoman for Peconic Bay Medical Center in Riverhead informed New York Criminal Lawyers that it was an adult that was killed in the accident.
Five other victims, including the one who died, were transported to Peconic Bay Medical Center, according to the spokeswoman. The ages and condition of the other injured passengers has yet to be revealed.
A police lieutenant in Riverhead told reporters the fatality occurred on the minibus.
A spokeswoman for John T. Mather Memorial Hospital in Port Jefferson said that there were four adult victims of the accident brought to her facility for treatment. According to her, all the injuries were not life-threatening and it was likely that the patients would all be released very soon. Police in New York City and Queens are studying this case.
One of the victims was transported by a Suffolk police helicopter. The stretch of road where the accident occurred was closed by Riverhead Police only minutes after the crash.
A witness who works in a nearby nursery told police that it wasn’t at all uncommon for vehicles to travel down the rural road at high speed. There was no evidence of drugs or alcohol so, DWI and DUI were not charged.
“You have to take your time and go slow,” she said.
One moment can change an entire life, even if they don’t result in criminal charges – but when they do, that is a dark time for both the accused and the family of the accused. New York Criminal Lawyers understand this and have the skill and discretion make a difficult time a little easier.

Continue reading "One Killed, More Injured in Bus Crash" »

An attorney, formerly a prosecutor in the Bronx, has been charged with DWI, but now he sees a way to have his case possibly thrown out, according to NY City Criminal Lawyers. The officer who caught him may well be charged herself for ticket fixing. Instead of the attorney being punished, she might end up in trouble herself.
The officer was caught by authorities on wiretap in an attempt to fix tickets for a relative and a friend. Still prosecutors say the officer, a seven-year veteran of NYPD, will not face any criminal charges of her own. That does not mean she won’t suffer punishment from her department, however.
She admitted to fixing the ticket and she’s not the only one under suspicion for the same. This means every ticket they handed out is suspect, which puts an aspect of extreme uncertainty into hundreds of criminal cases throughout New York City, including that of the attorney who was once an assistant DA.
The 29-year-old officer arrested the attorney in 2006 as he drove home from a Christmas party. At that point, he had already left the Bronx DA’s office to pursue his own private practice.
Once it was discovered the attorney’s arresting officer was part of the ticket-fixing scandal, the motion was made to have the case dismissed. As of yet, the outcome of the motion is unknown.
The officer admitted she tried to get assistance from a union delegate so she could erase two citations for speeding. This was the first time in the case that anyone was actually named.
“I asked my PBA delegate… if he could fix a summons that my boyfriend’s cousin had received and another summons that my mom had received,” she said at the hearing, according to NY City Criminal Lawyers.
According to the officer, the tickets, one in Queens and the other in Manhattan, were indeed removed. “She didn’t have to pay,” the officer said, regarding her mother. “That’s how the ticket got fixed.”
It remains to be seen whether the attorney’s motion to have the case dismissed will be accepted by the judge. If it is, other cases may take a similar path.

Continue reading "Ex-Prosecutor Attempts to Have Case Thrown Out" »

A mom was driving through the city of Pittsburgh while she was under the influence of cocaine and alcohol. Police say the woman crashed her car in to a concrete barrier along the side of the road. It was only when police arrived on the scene did she admit to using cocaine and being drunk. Police then filed criminal charges against her because she had her seven year old son and another child in the backseat of the car. Another woman was also a passenger in the vehicle but she was not identified, according to a New York Criminal Lawyer.
The children and the woman driver only had minor injuries. When police got to the scene, they discovered beer cans that were opened within the car. When questioned, she openly admitted to being drunk. The woman also questioned why she had to take a test if she admitted she was drunk. Police are considering more criminal charges against the woman in relation to endangering the children. The passenger’s state was not described and it wasn’t stated if criminal charges are being filed against her as well. This would also be the case in New York City and Staten Island.
The female driver admitted to using one line of cocaine before getting behind the wheel to drive the car. Taking drugs and being over the legal limit for alcohol can be considered a criminal offense in most states, says a New York Criminal Lawyer. Her charges were still pending and she did not have a court date set. Once she arrives in court her punishment – either fines, jail time or both – will be decided upon then.

Continue reading "Mom Driving Under Influence Faces Charges" »

A North Ridgeville man was recently arrested for driving under the influence of alcohol, DWI which is his seventh similar charge in the past 25 years. In NYC, this would lead to serious jail time.

The 40-year old North Ridgeville native appears to be expressing regret in regards to his irresponsible actions; DUI’s account for countless deaths across the nation every year. In 1991, the defendant was convicted of his first DUI. Merely a year later he was charged with a further two counts, and three additional counts of DUI around a decade later. This recent charge, his seventh, appears to stem from the recent death of the man’s father, a hardship that led him to this current chargeable offense. A New York City Criminal Lawyer reveals that the defendant expressed sorrow regarding the most recent incident, saying “I know what I've done is a very serious offense. Sobriety is my No. 1 priority”. This admittance was directed toward the Huron County Common Pleas Judge during the course of the sentence hearing of the convicted, which occurred on Tuesday March 01.

The Common Pleas Judge was reported to have responded, “Drinking and driving ... is too big of a risk for the public”. The judge followed up his decisive comments with decisive action that included a lengthy driver’s license suspension of five years, as well as a monetary fine of $1500. This recent scenario involving the North Ridgeville man began last June, when he was pulled over for driving his vehicle without the use of headlights, while traveling west on U.S. 20, close to the nearby town of Wakeman. The man’s attorney was available for comment: “Since this incident, he has gotten back on track”. The attorney went on to comment upon his client’s foreseeable future: “I believe this (sentencing) will be a positive for him”.

As part of an important healing and restoration process, the convicted man finished a substance abuse program of his own volition, which no doubt showed his responsible initiative and had a positive effect on the judge’s decision. Additionally, "It is a fact that drinking and driving, no matter the circumstances, often results in undesirable consequences. Should you find yourself in such a situation that seems to be resulting in legal consequences, a New York Criminal Attorney is prepared to render service to you or those whom you care about.
It is discerns that the man has attended gatherings of AA, a commitment that the defendant himself has admitted to be wise indeed and worthy of continuation. As of now the North Ridgeville defendant is under three years of probation that includes random drug screens- screens that, if failed, would result in 2.5 years in prison. Brooklyn has tough laws against DWI as do most areas of New York City.

Continue reading "A local man is arrested and charged with his seventh DUI in 20 years" »