Criminal Procedure

Published on: September 27, 2012

Court Decides if Prior Convictions Can Be Used to Impeach Defendant

by Stephen Bilkis

This case is about an appellant who was adjudicated guilty, after a jury trial, for inciting a riot under Section 870.01(2), Florida Statutes (1981). A New York Criminal Lawyer said the appellant argued that the evidence presented by the prosecution was insufficient to support his conviction. Although the sufficiency of the proof presented a close question, after thorough review, the court held that the State did present a prima facie case and that a judgment of acquittal was not required.

The case however was reversed on the ground of evidentiary rulings as to prior convictions. The question concerns the impeachment of appellant under Section 90.610, Florida Statutes (1981), on the basis of two prior petit larceny convictions. The trial court ruled that these prior petit larceny convictions could be used for impeachment purposes and threatened to hold appellant in contempt if he took the stand and testified that he had not been convicted of a crime. Appellant did testify and on direct examination stated he had been convicted of a crime twice.

The old rules on Evidence provide that a witness was subject to being impeached with evidence of a prior conviction of any crime, excluding violations of a municipal ordinance. Jurisprudence prior to the amendment of the rules established that “a crime is a crime”. A New York Criminal Lawyer said the argument that discrediting crimes must involve moral turpitude was expressly rejected.

Published on: September 27, 2012

Court Hears Heroin Possession Case

by Stephen Bilkis

A Georgia Intent to Distribute 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). This court recently affirmed an earlier conviction of defendant for conspiracy to possess and to distribute heroin. On the present appeal a New York Criminal 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 possession 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: September 26, 2012

Court Hears Cocaine Possession Case

by Stephen Bilkis

In this criminal case, the defendant was arrested by a Police Officer at 144th Street in Manhattan and charged with possession of a 9mm firearm. A New York Criminal Lawyer said that 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 (cocaine possession) 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. A Nassau County Criminal Lawyer said 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.

Published on: September 25, 2012

Court Hears Bank Fraud Case

by Stephen Bilkis

The savings bank filed a motion for summary judgment in its action against the mortgage corporation and the guarantors for breaches of loan agreement and guaranty agreement, respectively, by the latter and for their charges against another defendant for the commission of bank fraud.

The plaintiff entered into a contract of loan at New Jersey with the mortgage banker wherein the savings bank extended a line of credit to the defendant for the purpose of closing the latter’s existing mortgage loans. In connection with the loan agreement, the officers, who are the owners of the mortgage corporation, executed individual guaranty contract which established their solidary liability of the mortgage banker’s obligation upon its failure to settle the obligations on time. Another guaranty was executed by the owner’s wife in relation with the loan agreement.

The stipulations of the loan agreement pertain to the grant of mortgage loans of the defendants’ borrowers where the line of credit shall be used to finance the mortgage contracts. Upon settlement of the mortgage loans by the borrowers, the proceeds of the loan would then be remitted to the savings bank and mortgage notes would be used as security in favor of the savings bank as part of their agreement. A Long Island Criminal Lawyer said much mortgages would then be sold to potential investors and the plaintiff, as bailee, shall give the investors the mortgage notes where they shall pay the purchase price directly to the savings bank’s mortgage warehouse lenders who in turn would give the proceeds back to the savings bank as payment to the advances made by the defendants in their line of credit with the plaintiff. The defendants were responsible to the keeping of all the records pertaining to the loan agreement.

Published on: September 24, 2012

Court Hears Motion for Summary Judgment Case

by Stephen Bilkis

A motion was filed by the defendant for summary judgment of the case in its favor. The plaintiff is a Swiss bank that filed a case against the New York Company who committed bank fraud, particularly, fabricated and sold the promissory notes of the bank amounting to $5 million. The Swiss bank further alleged that the notes sold by the company defendant was part of a global fraud scheme to raise funds in favor of an Italian food conglomerate as payments of loan by the former to the latter.

The bank fraud was conducted through issuance of the notes by one of the company’s subsidiary in Uruguay, which was then sold to a defendant’s affiliate where the Swiss bank purchased the promissory note. A New York Criminal Lawyer said the note is with attachments of a guarantee of payment executed by the subsidiary company and a side letter from the affiliated company. The letter contained a certification that the proceeds of the notes will be used to finance the expansion of the Italian food conglomerate and for the upgrade of its industrial plants at various South American countries.

However, during the time of the purchase of the notes, the food conglomerate financial conditions were worsening and the governments of Brazil and Italy conducted criminal investigations of the Italian food conglomerate financial structure due to the financial distress status of the company and such became a public knowledge. The notes purchased by the plaintiff matured in 2004 but have not been repaid. One of the issued notes was then sold to the bank’s affiliate. The Swiss bank also filed a claim on the notes in the bankruptcy proceedings commenced by Italy against the Italian food conglomerate.

Published on: September 23, 2012

Court Decides Conspiracy Charges

by Stephen Bilkis

In this criminal case, a shoplifter had been apprehended and brought to the office of Carl G., a 22-year old office manager of a food store, and after some discussion G agreed to ‘forget’ the whole incident upon payment to him of $500. A New York Criminal Lawyer said upon reflection, the shoplifter disavowed the scheme and reported it to the District Attorney, who arranged for payment of the money to G.

When the money was paid G was arrested for extortion. Although G had retained counsel he inquired of defendant S, a security officer in his store, if he knew anyone who could help him. The next day S informed G that defendant B, an ex-state senator, had great influence and could perhaps have the charge dropped but it might involve paying off some people. He arranged for G to meet B. At this meeting attended by all three, B and G had a discussion in which S did not participate.

G was advised to discharge his attorneys; B ‘guaranteed’ he could produce a satisfactory result because of his influence with certain public officials and agreed to make an inquiry to determine how much of a pay-off might be required. At that meeting G intended to go along with B suggestion to turn over money to resolve or drop the pending charges. Before the scheduled second meeting, G upon reflection concluded that B was a name dropper who couldn’t do anything for him and advised S he had reconsidered B proposition, decided to decline his help and withdrew from any arrangement. S did not attempt to induce G continued participation in the scheme. Thereafter G revealed all these events to his attorneys, who advised the District Attorney, and G agreed to co-operate with him in an investigation of the defendants. By pre-arrangement with the District Attorney, G office was equipped with a hidden microphone and S was called to his office. G asked him whether B would ‘take him back on’. S indicated that B had become very displeased B for backing out of the original deal because he had done 3 or 4 days of research on his case. He did however arrange for another meeting. The record shows no other meeting between G and S, only the one meeting at which all three were present, and no other meeting between S and B. G, on the other hand, conferred with B on two more occasions, during both of which he was equipped with a concealed transmitter tuned to a receiver in the District Attorney’s car. At the second meeting Bauer advised Gmerek that he had discussed the extortion charge with the District Attorney and certain other people (when in fact the record reveals he had never done so); that the charges could be favorably disposed of for $3,000 but he would try for $2,000, and he requested Gmerek to bring that sum in cash at their next meeting. Gmerek was furnished the money in marked bills by the District Attorney, and after it was given to Bauer the latter was arrested.

Published on: September 22, 2012

Court Hears Murder Case

by Stephen Bilkis

A man who owned a bar saw two of his customers having an argument while inside the bar. He went over to them and told them to take their argument outside. The two men left the bar and stayed on the sidewalk just outside the bar and the argument escalated into a very heated argument. A New York Criminal Lawyer said tne man pushed the other man down. The man who pushed the other drew a gun from his backside and fired into the crown inside the bar which by then was rubber-necking the argument outside. A patron inside the bar got hit when the ma outside fired into the bar. That man lay seriously wounded on the floor of the Bar.

Unnoticed by the man outside the bar, a police officer on beat patrol heard the commotion and the shots fired. On the other side of the street, as the gunman fired into the bar, the police officer engaged the gunman in a gunfight. A few seconds later, a car pulled up near the gunman and the gunman got inside the car. The police officer gave chase while still firing upon the car.

In the meantime, when the bar keeper and owner of the bar heard that shots were fired by the gunman outside the bar, he went behind the bar and took out his shotgun. When he heard the screeching of the tires on the street, he came out of the bar and stood next to the police officer. He fired his shotgun at the car.

Published on: September 21, 2012

Court Listens to Drug Charges

by Stephen Bilkis

Defendant Riley M. was arrested and charged with criminal possession of a controlled substance in the seventh degree (drug possession) (Penal Law sec. 220.03), criminally using drug paraphernalia in the second degree (Penal Law sec. 220.50), loitering in the first degree (Penal Law sec. 240.36), resisting arrest (Penal Law sec. 205.30) and disorderly conduct (Penal Law sec. 240.20). The defendant said that, defendant now moves pursuant to CPL 170.30(1)(a) and 170.35(1)(a) to dismiss the complaint for facial insufficiency on the ground that possession of cocaine residue is not sufficient to sustain a charge of criminal possession of a controlled substance in the seventh degree.

The issue in this case is whether the defendant is entitled to his motion to dismiss on the ground that possession of cocaine residue is not sufficient to sustain a charge of criminal possession of a controlled substance in the seventh degree (drug possession )

Possession of Cocaine Residue

Published on: September 20, 2012

Court Finds Citation Should be Dimissed for Lack of Service

by Stephen Bilkis

Probate laws are specific about timed deadlines. In New York, Surrogate’s Court Act §59(2) provides that timely service of a probate citation to appear or produce documents must be served in a certain period of time. The time that is allowed for a document to be produced once a person has been served with the citation depends on the location of the service. The time that is detailed takes into consideration the fact that the person who is served must also make arrangements to appear in court. Therefore, a New York Criminal Lawyer said the service time allotment for a citation for probate court depends on whether the counties are touching. If the counties touch on any side, then the person who is receiving the citation is given seven days to appear in court. If the county where the citation is served does not touch the county where it originated on any side, then the statute declares that the respondent must have ten days at minimum to respond to the citation.

On April 23, 1963, a woman who lived in Richmond County was served with a copy of a citation to respond to probate court in eight days. The woman filed a motion to extend the time that she is given to respond and also to dismiss the first citation to respond based on the fact that she was not provided adequate time to respond to the citation. The court looked at the history of New York as a colony in order to determine the woman’s standing. When New York was just a colony, it was divided into counties. The boundaries of these counties have been refined over years of legal enactments. In the case of this particular woman, she lives in Richmond County and the surrogates court that sent her the citation is located in New York county. The two counties do not touch on any side. A Westchester County Criminal Lawyer said the only county that borders Richmond County is the county of St. George. Therefore, it is not reasonable that the woman was only given eight days to respond to the citation. The citation should have had a return date that was at least ten days later than the date of service of the citation.

Since, the woman was not given the correct amount of time to prepare and return service that was required on the citation, the court agreed with her council that the citation should be dismissed. She would be issued a citation that was corrected and that would provide her with a full ten days in which to prepare her return. While it may not seem like a deciding factor in any situation that three days could alter the outcome of anything, when it comes to legal actions, it is important to ensure that the laws are being followed to the letter. If a court is allowed to shorten the number of days that are allowed to a person before they must return the citation, then they are preventing that person from taking all of the time that they are allowed by law to take in order to prepare their case. Preventing a person from being allowed to prepare their case, is a serious offense. A Suffolk County Criminal Lawyer said the American jurisprudence system is designed to ensure that everyone has the time to present the case that is critical to their legal standing. When a court shortens that time, then that person is not provided with adequate time to prepare their case. This court took that infraction seriously and did not allow that court to change the rules of the game to suit their particular purpose. Anyone who is required to respond to a probate citation is permitted to use all of the time that the statute allows them to prepare their case.

Published on: September 19, 2012

Defendant Moves to Suppress Physical Evidence

by Stephen Bilkis

This is an appeal by the defendant from a judgment of the County Court, Nassau County, rendered October 21, 1993, convicting him of murder in the second degree (two counts), robbery in the first degree (two counts), criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. A New York Criminal Lawyer said the appeal brings up for review the denial, after a hearing, of the branch of the defendant’s omnibus motion which was to suppress statements made by the defendant to law enforcement officials.

The issue in this case is whether the defendant is entitled to the suppression of his statements made to the law enforcement officials.

In this possession of a weapon case, the Court said that, the People established that the police had probable cause to arrest the defendant without a warrant. Probable cause may be supplied, in whole or in part, through hearsay information. Under the Aguilar- Spinelli rule, when probable cause is predicated in whole or in part upon the hearsay statement of an informant, it must be demonstrated that (1) the informant disclosed a sufficient basis for his or her knowledge, and (2) the informant was reliable. Further, the basis-of-knowledge and veracity requirements of Aguilar- Spinelli are analytically independent and each must be satisfied separately. “Information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest.