New York

Published on: 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

by Stephen Bilkis

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.

Published on: January 8, 2013

Prison Inmates Contend Constitutional Rights Were Violated

by Stephen Bilkis

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.

Published on: January 7, 2013

Court Hears Case Based on Professional Misconduct

by Stephen Bilkis

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.

Published on: December 31, 2012

Probable Cause Questioned in Drug Crime

by Stephen Bilkis

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.

Published on: December 30, 2012

Defendant Claims Due Process Rights Violated in Drug Charge

by Stephen Bilkis

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.

Published on: December 23, 2012

Court Discusses the Elements of Burglary

by Stephen Bilkis

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.

Published on: December 15, 2012

Court Discusses Intent in Petit Larceny Charges

by Stephen Bilkis

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:

Published on: December 13, 2012

HIV Positive Defendant Charged With Biting Victim

by Stephen Bilkis

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.

Published on: December 12, 2012

Court Discusses Grand Larceny vs. Petit Larceny Charges

by Stephen Bilkis

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.

Published on: December 11, 2012

Court Distinguishes Between Petit Larceny and Felony Petit Larceny

by Stephen Bilkis

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.