Criminal Procedure

Published on: October 10, 2012

Court Decides Whether to Issue Writ of Heabeas Corpus

by Stephen Bilkis

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.

Published on: October 9, 2012

Defendant Submits a Nolo Contendre Plea

by Stephen Bilkis

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.

Published on: October 9, 2012

Court Discusses Mental Hygiene Law

by Stephen Bilkis

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.

Published on: October 9, 2012

Defendant Charged with Drug Possession

by Stephen Bilkis

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”.

Published on: October 9, 2012

Court Hears Conspiracy Case

by Stephen Bilkis

A New York Criminal Lawyer said that, the defendant appeals his conviction after trial to a jury for conspiring to possess cocaine with intent to distribute it, in violation of 21 U.S.C.A. § 846, and to distribute it, in violation of 21 U.S.C.A. § 841(a)(1) (drug possession). This court recently affirmed an earlier conviction of defendant for conspiracy to possess and to distribute heroin. On the present appeal a Georgia Heroin Lawyer said that defendant contends that the government arbitrarily has carved a single conspiracy to deal in narcotics into separate heroin and cocaine conspiracies in violation of his Fifth Amendment right against twice being placed in jeopardy for the same offense.

A Georgia Heroin Lawyer said that, the government’s proof in the heroin conspiracy trial established that defendants arranged sales of heroin for their cocaine customer a Detective, who unknown to them was an undercover DEA Agent. Co-defendant, who pled guilty, and the Detective testified against defendant in both trials. The government presented to the jury portions of defendant’s own testimony from the heroin conspiracy trial in the trial on the cocaine conspiracy charge. During July 1976, conspiratorial negotiations involving cocaine and heroin went on simultaneously. The major events proven in defendant’s trial on the heroin conspiracy charge which we discussed in our earlier opinion affirming that conviction, were also central to the government’s proof against defendant’s in the trial on the cocaine conspiracy charge.

The issue in this case is whether defendant’s claim for double jeopardy should be granted.

Published on: October 8, 2012

Defendant Claims there is Insufficient Evidence for a Drug Possession Charge

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). 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.

Published on: October 8, 2012

Man Receives Life Sentence for Distributing Heroin

by Stephen Bilkis

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.

Published on: October 8, 2012

Defendant Contends Confession was Coerced

by Stephen Bilkis

In this criminal case, a New York Lawyer said the defendant was arrested by a Police Officer at 144th Street in Manhattan and charged with possession of a 9mm firearm. While en route to the 32nd Precinct, he initiated a conversation with the Police Officer in which he asked him to let him go and stated that he would help him by bringing in additional guns. They arrived at the precinct at approximately 7:50 p.m. and while the Police Officer elicited pedigree information, the defendant continued to talk about bringing in additional guns. The defendant, who was “kind of fidgety”, talked continuously and was “over-excited”, told the Police officer that he “used” heroin. At 9:05 p.m. A detective read Miranda warnings to the defendant. The defendant indicated that he understood his rights and wished to answer questions. Thereafter, the Police Officer and the Detective spoke with the defendant intermittently. During this period the defendant also was questioned by homicide detectives from the 32nd Precinct. Thereafter, the defendant gave a detailed oral statement to the detective in whom he explained where and from whom he had purchased the 9mm weapon and said that he had purchased cocaine from the same location. At approximately midnight, the defendant made two telephone calls: one to his wife and the other to an unidentified male. He told the man that he had been arrested, that he was “working with some good police officers” and that the man should gather the guns and gave them to the defendant’s wife. The Police Officer told the defendant that he would tell the District Attorney’s Office that the defendant was cooperating. At approximately 2:00 a.m. the defendant’s wife arrived at the precinct and the defendant, in the Police Officer’s presence, instructed her to get the guns. At about 4:00 a.m. she returned to the precinct with a Cobray Mac 11 gun, a .380 caliber pistol and matching ammunition.

The defendant was then transported from the 32nd Precinct to Manhattan Central Booking for arraignment. He complained of being ill and asked to see a doctor. Central Booking, therefore, would not accept him and he was returned to the 32nd Precinct. The Police Officer filed a felony complaint on the arrest with the Manhattan District Attorney’s Office. The Warrant Officer again transported the defendant to Manhattan Central Booking. At 10:15 a.m. the Warrant Officer received a call from the Police Officer asking that he return the defendant to the 32nd Precinct and the former did so.

At 11:45 a.m. another Detective in the Brooklyn South Homicide Task Force learned from the Police Officer that the defendant, a suspect in the December 20th shooting was being returned to the 32nd Precinct. Defendant was questioned by narcotics detectives from Manhattan South. The detective questioned the defendant, asking him about a gun trafficker in Brooklyn. Twenty minutes into their conversation, he told the defendant that he and a Sergeant were from Brooklyn and “that they knew that he had done a shooting in the apartment on Parkside Avenue.” The defendant shook his head “No” and the detective repeated that they knew he had done it and wanted to hear his version of what had happened. The defendant stated: “He tried to f* * * my wife. My wife called me and I went over there.” The detective then showed the defendant the Miranda waiver, signed the previous evening, and “reminded him that he had waived his rights, signed the Miranda form and agreed to make a statement.” The detective then re-administered Miranda warnings and the defendant once again indicated that he understood. During the next hour the defendant made statements concerning the shooting. The defendant, also, told the detective that he was a heroin user.

Published on: October 7, 2012

Defendant Brings an Action for Unjust Conviction

by Stephen Bilkis

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.

Published on: October 7, 2012

Defendant Challenges Territorial Jurisdiction

by Stephen Bilkis

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.