Criminal Procedure

Published on: October 3, 2012

Court Discusses the Elements of Burglary

by Stephen Bilkis

Sometime on July 14, 1995 at 11:30 pm two police officers were in a police cruiser and they were parked with the headlights turned off. They were observing two men outside an auto mechanic’s garage which was already closed for the night. A New York Criminal Lawyer said the two policemen were observing two men who were circling around a parked Chevrolet outside the auto mechanic’s garage.

A little later, the two men took out tools from a tool box they carried and they started removing the hub caps and the lug nuts of the parked car. A while later they were able to remove all the four tires of the car. They took the tires and the hub caps and loaded these into the trunk of their own car. Before they could start their engine the police officers came towards them and declared them arrested.

At the police station, the police officers charged the men for burglary, for possession of tools for burglary and for burglary of a conveyance. A New York Lawyer said the two men pleaded not guilty and they also filed a motion to dismiss the two charges for burglary and the possession of burglary tools.

Published on: October 3, 2012

Defendant Claims Insufficient Evidence for Drug 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. A New York Criminal Lawyer said 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. 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 Heroin Possession 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 Bronx Criminal 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 2, 2012

Court Discusses Mental Hygiene Law

by Stephen Bilkis

The accused husband and wife were charged with a violation of the Penal Law. They were arraigned and each pleaded not guilty. A New York Criminal Lawyer said on the same date the charge was amended to attempted petit larceny. The husband and his wife changed their pleas to guilty of the amended charge. The sentence was deferred pending a pre-sentence report and a medical examination pursuant to the Mental Hygiene Law, to determine if the accused husband and his wife were narcotic addicts.

Pursuant to the District Court’s order, the accused wife was examined by a doctor, and her husband was examined by a separate doctor, on March 8, 1973. The reports of the doctors certified that each of the accused was a narcotic addict, within the meaning of such term, as defined in the Mental Hygiene Law. Each of the accused denied being a narcotic addict. They both waived a jury and addiction hearings were held separately for each of the accused husband and wife.

The undisputed testimony is that each of the accused husband and wife has not used heroin for a period of over two years, and during that period of time, each has been on a State of New York approved program of methadone maintenance. The question before the District Court is to determine whether the complainants have met their burden of proving heroin addiction by a fair preponderance of the credible evidence despite the fact that the accused husband and wife admittedly have not used heroin (heroin possession) for over two years.

Published on: October 2, 2012

Court Discusses Crime of Possession of a Controlled Substance

by Stephen Bilkis

On this proceeding, the state presented evidence about a pharmacologist who was a member of a conspiracy to procure heroin. 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.

A New York Criminal Lawyer said 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. A New York Criminal Lawyer said 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.

Published on: October 2, 2012

Court Decides Heroin Possession Case

by Stephen Bilkis

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. A New York Drug Crime Lawyer said 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 Jacksonville Heroin Possession 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”.

A Jacksonville Intent to Distribute Lawyer said that, the indictment charged possession with intent to distribute only the 6¼ grams found on the coffee table. The Government relied upon the 30 “dime bags” to prove that defendant had the requisite intent to distribute. A New York Criminal Lawyer said its theory was that the heroin found in packages suitable for street distribution indicated that defendant was a dealer in heroin; that he had received the 13-gram package delivered in the mail for the purpose of selling or distributing most or all of the 13-gram quantity; and that he therefore intended to distribute the 6¼ gram quantity found on the coffee table.

Published on: October 1, 2012

Defendant Claims Insufficiency of Evidence

by Stephen Bilkis

In this case, the appellant was tried before the court without a jury and found guilty of the crime of breaking and entering a dwelling with intent to commit a felony, to-wit, grand larceny, and of the crime of grand larceny. A New York Criminal Lawyer said that separate sentences were imposed thereon for imprisonment for a period of three years, with provision for the sentences to be served concurrently.

On appeal therefrom, it was contended that the court erred in denying appellant’s motion for acquittal on the ground of insufficiency of the evidence, and further that it was error to impose more than one sentence.

Upon review of the case, the court found no reversible error therein.

Published on: October 1, 2012

Court Discusses the Blockburger Test

by Stephen Bilkis

In this case, the appellant appealed his convictions and sentences for fraudulent sale of a counterfeit controlled substance, and felony petit theft. He argued that both charges arose out of the same acts, and that this double conviction should be barred by section 775.021(4)(a) and (b), Fla.Stat.

A New York Criminal Lawyer said the record of this case established that Appellant told an undercover officer that he had rock cocaine for sale. He sold the officer a substance which proved not to be cocaine. For the fraudulent sale, he was sentenced as a habitual offender to ten years in prison. For the felony petit larceny, he received a consecutive two-year term on community control followed by three years on probation.

The Florida Legislature has announced its intent that there should be separate and multiple convictions for each statutory offense that is committed during the course of a criminal transaction or episode. In section 775.021(4)(b) the Legislature set out basically only two exceptions to this policy. Subsections 1 and 3 are encompassed by the Blockburger test: statutory offenses which require proof of all of the same elements of proof; and those that require fewer, but identical elements of proof, which are necessarily included in the elements of the greater offense. Subsection 2 excepts “degree” crimes, such as the various forms of homicide.

Published on: September 30, 2012

Appellant Contends Summary Judgment was in Error

by Stephen Bilkis

In her complaint the appellant averred that she was maliciously prosecuted when the appellees, acting in concert, caused her arrest and induced the County Solicitor of Dade County to file information in which she was charged with grand larceny, a charge the appellees knew was false. The pleader detailed the procedure following the filing of the information, related the embarrassment she endured and the damage she suffered, and she repeated the charge that the prosecution was instigated through malice without probable cause. A Dade Grand Larceny Lawyer said that, it was stated in the complaint that appellant pleaded not guilty upon arraignment, waived a jury and was found not guilty by the Judge of the Criminal Court of Record.

A New York Criminal Lawyer said that, summary judgment in favor of the appellees, who were defendants in the circuit court, was entered by the judge when he concluded that no genuine issue of fact was presented and that the movants should prevail as a matter of law.

The issue in this case is whether the Circuit Court Judge erred in granting summary judgment in favor of the appellees.

Published on: September 29, 2012

Appellant Argues Sentencing Guidelines were Inaccurate

by Stephen Bilkis

In this case, a New York Criminal Lawyer said the Appellant sought review of the sentences imposed based upon inaccurate sentencing guidelines scoresheet, and a written probation order that included a condition which was not pronounced orally at the sentencing hearing.

The court reversed the sentence imposed and remanded the case for resentencing.

The predicate offenses, kidnapping and armed robbery with a weapon, were committed June 8, 1990. The guidelines scoresheet used at sentencing shows a total of 316 points, for a recommended sentencing range of twelve to seventeen years, and a permitted sentencing range of nine to twenty-two years. The trial court imposed a sentence of twenty years on the kidnapping conviction, and a probationary term of twenty years on the armed robbery with a weapon conviction. The probation was to be served consecutively to the kidnapping sentence.

Published on: September 28, 2012

Court Hears Juvenile Robber Case

by Stephen Bilkis

This case is about an appeal filed by a juvenile from an adjudication of delinquency for robbery and a subsequent commitment to the Florida Department of Health and Rehabilitative Services.

The central question presented for review is whether the state established a prima facie case that the respondent juvenile employed force, violence, assault or putting in fear–an essential element of robbery–in effecting a theft of jewelry from a three-year-old child.

The respondent was charged in a petition for delinquency before the Circuit Court for the Eleventh Judicial Circuit with the offense of robbery.