Criminal Procedure

Published on: February 26, 2013

Court Finds Scheme to Defraud Regarding DEC Permits

by Stephen Bilkis

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.

Published on: February 25, 2013

Court Discusses Grand Larceny by Means of Extortion

by Stephen Bilkis

A man approached the sitting executive director of the New York State Republican Committee. He told the executive director that he will expose the criminal acts and official misconduct by a high-ranking elective Republican official. He also said that he will consider keeping quiet if he was given the amount of $25,000 yearly and a job with the state government for three years.

A New York Criminal Lawyer said the executive director went to the police and reported the extortion attempt. The police then asked the executive director to set up a meeting with the man. When the meeting was set, the police hooked up a microphone for the executive director to wear. The executive director then asked the man to explain once more what he had proposed. The man’s extortion attempt was caught on audio tape recording. He was arrested and charged with attempted grand larceny in the second degree.

The man asked the trial court for leave to inspect the minutes of the Grand Jury minutes. He then filed a motion to dismiss the indictment on the ground that the evidence submitted by the prosecutor was not legally sufficient to establish the elements of the crime of grand larceny.

Published on: February 25, 2013

Defendants Allege Unlawful Rent Increase

by Stephen Bilkis

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.

Published on: February 24, 2013

Court Discusses Elements of Larceny

by Stephen Bilkis

A couple was on welfare. A New York Criminal Lawyer said they received a check from the New York Department of Social Services. They were entitled to a sum but they received a check that was over and above the sum they usually received.

On the back of the welfare check, there was an undertaking that they must inform the Department of Social Services if the check they received had a face value that was $5.00 more than the amount they used to receive.

The couple received the amount of $1500 more than they were entitled to. They cashed the checks even if they knew that the amounts were over and above the amount they were entitled to. The checks they cashed were received by them between 1969 and 1973.

Published on: February 24, 2013

Defendant Charged with Assault in Times Square Incident

by Stephen Bilkis

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.

Published on: February 23, 2013

Defendant Pleads Guilty to Grand Larceny Charges

by Stephen Bilkis

A man was charged with grand larceny for having taken a car from its owner. A New York Criminal Lawyer said the car was valued at $500. The indictment stated that the man intended to deprive the owner of the car the use and benefit of the car. And when he took the car, he fully intended to use and operate the car for his own profit use and benefit. The indictment also alleged that the taking of the car was without the consent of the owner of the car.

The man pleaded guilty to the charge of grand larceny. The man’s plea of guilt was made after he was duly advised by the court that he had a right to be represented by a lawyer of his choice and if he could not afford a lawyer, one can be provided for him. Even when he did not have any lawyer present, the man still pleaded guilty. The trial court sentenced the accused to imprisonment for not less than five years and not more than ten years spent in hard labor.

The accused then filed a motion to vacate his conviction. This time, he asked for a lawyer to be provided for him. A private lawyer was appointed to defend him pro bono. The lawyer asked for an adjournment so that he can prepare a brief of his arguments to support the motion to vacate the man’s conviction for grand larceny. The adjournment was granted. The lawyer for the man filed a brief and trial was scheduled. No testimony was offered during the hearing.

Published on: February 22, 2013

Defendant Claims the People Failed to Establish Burden of Proof in Larceny Case

by Stephen Bilkis

This is an appeal by defendant from a judgment of the County Court, Suffolk County, rendered April 21, 1976, convicting him of grand larceny in the second degree (13 counts) and grand larceny in the third degree (2 counts), upon a jury verdict, and sentencing him to indeterminate terms of imprisonment with a maximum of seven years on each of the counts of grand larceny in the second degree, and to indeterminate terms of imprisonment with a maximum of four years on each count of grand larceny in the third degree, the sentences on all counts to run consecutively.

A New York Criminal Lawyer said that, defendant’s convictions are based upon the taking of money from various individuals from March, 1972 to February, 1974 in connection with an investment scheme, commonly referred to as a “Pyramid Scheme”. The prosecution proceeded under a theory of larceny by false promise, pursuant to section 155.05 of the Penal Law. A Suffolk Grand Larceny Lawyer said that, defendant’s primary contention on appeal is that the People failed to sustain their burden of proving this particular type of larceny, in that the representations made by him and his agents to the witnesses, as to how their money would be invested, were in fact carried out. Defendant contends that he at all times intended to fulfill his promises as to the investment plan and was merely a victim of some “bad investments”.

The issue in this case is whether the people failed to sustain their burden of proving the particular type of grand larceny.

Published on: February 21, 2013

Court Decides Domestic Violence Charges

by Stephen Bilkis

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.

Published on: February 21, 2013

Defendant Brings Omnibus Motion to Suppress Identification Testimony

by Stephen Bilkis

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.

Published on: February 21, 2013

Defendant Contends Four Level Enhancement of Sentence Was Incorrect

by Stephen Bilkis

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.