Criminal Procedure

Published on: December 28, 2012

Court Decides Whether Prior DUI Convictions are Allowed as Evidence

by Stephen Bilkis

The Facts of the Case:

On 11 October 1988, the petitioner was charged in the circuit court with three traffic-related offenses. One of the charges was for DUI (DWI) in violation of the Florida Statutes, to wit: that any person who is convicted of a fourth or subsequent DUI violation is guilty of a felony of the third degree. However, the information filed charging the petitioner made no mention of any specific prior DUI convictions, nor did the state before trial provide the petitioner any details of the alleged prior convictions. At arraignment, petitioner moved to dismiss or to transfer the matter to the county court, contending that because the information did not inform him of what specific prior offenses he allegedly committed, the information did not adequately charge the felony, and therefore the circuit court had no jurisdiction. The circuit court denied the motion. Consequently, the jury found petitioner guilty of DUI. A New York Criminal Lawyer said after denying the petitioner’s renewed motion to dismiss, the court immediately adjudicated petitioner guilty of third-degree felony DUI and sentenced him to four and one-half years’ imprisonment. Thereafter, the district court reversed on the ground that the felony prosecution in circuit court was improper because the information merely charged petitioner, in effect, with three misdemeanors. The district court expressed conflict with a prior court ruling which held that the state need not allege the prior DUI convictions in the charging document because of possible prejudice to the accused in the event the prior convictions were brought to the jury’s attention.

The Issue of the Case:

Published on: December 27, 2012

Court Discusses Public Policy Regard Drug Treatment Programs

by Stephen Bilkis

Plaintiff 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 defendant which was traveling on Hylan Boulevard in Staten Island. At the time of jury selection, the plaintiff moved in limine to preclude the defendant from offering evidence of or in any way calling the jury’s attention to the facts of the plaintiff’s incontestable past use of heroin ( and his current participation in a methadone treatment program.

Following jury selection and prior to opening, the court granted the balance of the plaintiff’s motion and precluded the defendant from mentioning or offering any evidence of the plaintiffs past use of heroin (heroin possession). 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.

First, it is important to recognize what is not presented on the motion. A New York Criminal Lawyer said the motion does not question whether a plaintiff’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 plaintiff, such as life expectancy. In that context, with an appropriate foundation, testimony regarding the plaintiffs heroin use would surely be admissible. Nor is it about whether the plaintiff 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 plaintiff was under the influence of heroin at the time of his testimony. The use of heroin by the plaintiff 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. (See, e.g., People v Freeland, 36 NY2d 518, 525 [1975].) The lone issue decided by this court on the branch of the motion reserved to it was whether the plaintiff’s past use of heroin was admissible as an act of moral turpitude offered only to attack his credibility as a witness.

Published on: December 25, 2012

Defendants Claim Court Erred in Sentencing

by Stephen Bilkis

The Facts of the Case:

A building containing offices and retail establishments was broken into and burglarized. Moments after the silent alarm system went off, the appellants, along with a third person, were found inside including various tools that were apparently used in the burglary. Consequently, appellants were charged and convicted of breaking and entering with intent to commit a felony, viz: grand larceny, petit larceny and possession of burglary tools. They were each sentenced to fifteen years for the breaking and entering conviction, 60 days in the county jail for the petit larceny, and five years for the possession of burglary tools, the latter to run consecutive to the former concurrent sentences.

A New York Criminal Lawyer said the appellants now ask the court for a reversal of their convictions and sentences and argues that the evidence presented was insufficient to support the conviction of breaking and entering with intent to commit grand larceny; that the trial court erred in disallowing the testimony of an alleged material witness; and that the trial court erred in imposing three separate sentences for the three offenses inasmuch as the petit larceny and possession of burglary tools were but facets or phases of the breaking and entering with intent to commit grand larceny.

Published on: December 24, 2012

Court Discusses Application of Harmless Error Rule in Theft Case

by Stephen Bilkis

The Facts of the Case:

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.

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 22, 2012

Court Upholds Possession with Intent to Distribute Charges

by Stephen Bilkis

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). The parties and co-defendant agreed that the former would sell the informant 25 ounces of heroin for $6,000 per ounce (Drug Possession). 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 Criminal 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. 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.

Published on: December 22, 2012

Defendant Charged with Two Crimes from Single Conversion of Money

by Stephen Bilkis

In this criminal case, appellant, was charged by information with robbery under section 812.13(2), Florida Statutes (1981) (Count I), and with grand theft, second degree, under section 812.014, Florida Statutes (1981) (Count II). The facts adduced at trial indicated that appellant and two other males had shopped lift a convenience store in Orlando by force, carrying away a cash register (valued at $250) which contained less than $50 in cash. The jury returned guilty verdicts on both counts, and appellant was subsequently adjudicated guilty of both robbery and grand theft, second degree. An Orlando Criminal Lawyer said that, the trial court sentenced appellant only on the robbery count, presumably on the authority of the extant rule at that time.

An New York Criminal Lawyer said that, appellant raises three points on appeal: the trial court’s denial of proffered impeachment evidence, the trial court’s denial of a motion for new trial based on newly discovered evidence, and a claim of double jeopardy in regard to the dual convictions.

The issue in this case is whether appellant’s appeal that he raises in his three points should be granted.

Published on: December 21, 2012

Doctor Charged with Negligently Prescribing Opiates

by Stephen Bilkis

This action concerns a young woman who at an early age became addicted to drugs. In 2005 when she was 18, she became a patient of the accused orthopedist and employee of orthopedic rehabilitation center for treatment of lower back pain and, a month later, for left ankle pain. From May 2005 through January 2007, the orthopedist prescribed large amounts of Vicodin and Methadone for the complainant woman’s pain. It is claimed that the multiple prescriptions by the orthopedist were improper, illegal and negligent and caused both physical and mental injury to the woman separate and apart from her earlier and continued addictions to illegal drugs such as heroin and cocaine and illegally obtained drugs such as Oxycodone.

Before, the Court is a motion for summary judgment by the accused parties. It is supported by an affirmation from a Board Certified Orthopedist. He first reviews the allegations made by the woman against the orthopedist. They include negligently and unjustifiably prescribing opiates to the woman and, by doing so, aiding her drug habit and causing her addiction to these opiates, improperly prescribing Methadone without a proper license, and failing to refer the woman to a pain management specialist.

A New York Criminal Lawyer said the Board Certified Orthopedist states, with a reasonable degree of medical certainty after reviewing all the relevant medical records and deposition transcripts, that the orthopedist committed no departure from good and accepted medical standards in his treatment of the woman, which was appropriate in every respect. He adds that as a licensed physician he was authorized to treat the woman and prescribe narcotic medications as he did without any negligence or medical malpractice.

Published on: December 20, 2012

Court Discusses Intent in Criminal Possession of Controlled Substance Charges

by Stephen Bilkis

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 Washington Heroin Possession 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. 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 (drug possession).

Published on: December 18, 2012

Court Discusses Elements of Grand Larceny

by Stephen Bilkis

A man broke into and entered a dwelling house. Once inside, he committed grand larceny by taking away from the premises properties belonging to the owner of the dwelling house which amounted to more than one hundred dollars.

The prosecutor was charged under an information with two crimes: the breaking and entering a dwelling with intent to commit grand larceny; and grand larceny. The man pleaded not guilty and he was tried before a jury. He was later convicted by that jury for the two crimes of breaking and entering with intent to commit grand larceny and grand larceny. A New York Criminal Lawyer said the trial court judge sentenced the man to imprisonment of two years for the grand larceny and one year for the breaking and entering with intent to commit grand larceny, both sentences to be served concurrently.

The man appealed the conviction and the sentences imposed upon him. The sole ground of his appeal was that he should not have been charged, tried, convicted or sentenced to two separate crimes of breaking and entering to commit grand larceny and grand larceny. He claims that the grand larceny should be comprehended in the one charge of breaking and entering with intent to commit grand larceny because the grand larceny was just an element or a facet of the crime of breaking and entering.