Criminal Procedure

Published on: September 18, 2012

Defendant Contends That Dendants

by Stephen Bilkis

On September 24, 2005, Police Officer Frantz Demorin of the 47th Precinct was on uniformed patrol with his partner, Police Officer Merritt, traveling southbound on Bronx Boulevard in the Bronx. Officer Demorin was driving the patrol car and his partner was seated in the front passenger seat. As he approached the vicinity of 3308 Bronx Boulevard, Officer Demorin observed a parked vehicle with two individuals inside of it. Officer Demorin testified that the neighborhood was a “high prostitution and narcotics” area. Officer Demorin pulled up alongside the vehicle, with the passenger side of the patrol car next to the driver’s side of the vehicle, and asked the occupants what they were doing and whether they lived in the area. Officer Demorin had this conversation with the occupants “through his partner through the other car”. Officer Demorin testified that he did not recall “exactly what the answer was”.

A New York Criminal Lawyer said that, after making this initial approach and inquiry, Officer Demorin and his partner exited their patrol car and approached the vehicle on foot. Officer Demorin testified that they approached the car on foot “just to make a common inquiry”. When asked the nature of this inquiry, Officer Demorin replied, “as to what they were doing in the area, if they lived in the area”. Officer Demorin testified further that he made this inquiry “because of the nature of the area it’s a high prostitution and drug crime prone location”. He added that he was trying to find out “if any illegal activity was afoot”.

Officer Demorin walked around to the passenger side of the vehicle where a female passenger was seated and his partner approached the driver’s side. Officer Demorin testified that from where he was positioned on the passenger side of the vehicle, he was able to observe the driver, subsequently identified as the defendant, make a sudden “downward” gesture with his hand.

Published on: September 18, 2012

Defendant Contends Line of Questioning was Prejudiced

by Stephen Bilkis

A man was arrested and charged with criminal heroin possession and sale sometime in August of 1973. The man stood trial and opted to testify in his own behalf. A New York Criminal Lawyer said he testified that the police officers who arrested him pressured him into becoming a police informant. He also testified that when he refused to be a police informant, the police officers threatened him with bodily harm.

He testified also on direct examination that he had never been convicted of any drug crime in the past. He denied having ever dealt drugs on the street. He also vehemently denied that he ever committed criminal heroin possession and sale as testified to by the police officers when they testified for the People. The district attorney began his cross-examination by asking the accused if he has ever had any criminal conviction at all prior to his arrest. The accused admitted that he was convicted as a youthful offender. The counsel for the accused did not object to the line of questioning that touched on the past criminal convictions of the accused.

The records show that the district attorney during the cross-examination of the accused asked him if he has ever in his life seen heroin. The accused answered affirmatively and asserted that he was a former heroin addict. It was at this time that the district attorney cross-examined the accused on his heroin usage in the past. The lawyer for the accused did not object to the district attorney’s line of questioning. The district attorney proceeded to question him as to the extent of his heroin usage. The accused admitted that he sniffed heroin intermittently until he was arrested. He also admitted that prior to that, he used to smoke marijuana.

Published on: September 17, 2012

Court Decides Alleged Mistreatment of Citizens of Philadephia

by Stephen Bilkis

Two suits, permitted to proceed as class actions, were brought in District Court under 42 U.S.C. § 1983 by respondents, individuals and organizations, against petitioners, the Mayor of Philadelphia, the Police Commissioner, and others, alleging a pervasive pattern of illegal and unconstitutional police mistreatment of minority citizens in particular and Philadelphia residents in general. The petitioners were charged with misconduct ranging from express authorization or encouragement of the mistreatment to failure to act in such a way as to avoid recurrence.

A New York Criminal Lawyer said the principal antagonists involved in one case were two police officer, not named as parties, who were found to have violated complainants’ constitutional rights in three of eight incidents as to which the District Court made detailed factual findings and as to which a five-day suspension had resulted in one incident and no disciplinary action in another. In the other case, in only two of 28 incidents did the District Court conclude that the police conduct amounted to a deprivation of a federally secured right; it found no police misconduct in four incidents; in another, departmental policy was subsequently changed; and, though the court made no comment on the degree of misconduct occurring in the remainder, there were arguably 16 police violations of citizens’ constitutional rights in the year involved.

A Suffolk Criminal Lawyer said that, the District Court found, that the evidence did not establish the existence of any policy on the part of petitioners to violate the constitutional rights of respondent classes but found evidence of departmental discouragement of complaints and a tendency to minimize the consequences of police misconduct. The court found that only a small percentage of policemen commit violations of the rights of Philadelphia residents generally but that such violations could not be dismissed as rare or isolated. Petitioners were directed to draft for the court’s approval “a comprehensive program for dealing adequately with civilian complaints” to be formulated in accordance with the court’s “guidelines” containing detailed suggestions for revising the police manuals and procedural rules for dealing with citizens and for changing procedures for handling complaints. On petitioners’ appeal the Court of Appeals affirmed.

Published on: September 16, 2012

Defendant Questions Probable Cause in Arrest

by Stephen Bilkis

Two known low-level drug dealers who sold marijuana were found shot in the apartment they shared. The police were investigating the murders. The police then questioned their known associates. A New York Criminal Lawyer said one of the murder victims’ known associates the police talked to admitted that he was in the apartment on the day before the murders and saw a man from the Caribbean buy half a pound of marijuana from the victims.

The known associate also told the police that the man from the Caribbean agreed to buy at least thirty kilos of a new shipment of marijuana from the murder victims. They agreed to meet the next day so that the man from the Caribbean can finally buy the marijuana. The police detective showed the known associate of the murder victims and he identified a picture of the man from the Caribbean.

The police detectives went in search of the man from the Caribbean and found him in an apartment. When the police were near the apartment door, they could smell the odor of marijuana. So the police detectives pounded on the door of the apartment. The man from the Caribbean came to th door. A New York Criminal Lawyer said the police detectives could smell the marijuana odor emanating from the open doorway of the apartment. They then asked the man from the Caribbean to step out of the apartment. They frisked him and handcuffed him. The officers asked him if there were any other occupants or residents in the apartment and the man from the Caribbean said that his brothers and his girlfriend were in there.

Published on: September 16, 2012

Defendant Files Application for Resentencing

by Stephen Bilkis

A man was convicted of having committed the crime of criminal possession of a weapon in 1993 and he was sentenced to serve one year in jail. In 1995, the same man pleaded guilty to a charge of federal racketeering and conspiracy. He served a prison term of six years.

In September 2003, the man was arrested by police officers who had been tailing and conducting surveillance on him. A New York Drug Crime Lawyer said he was seen selling one bag of heroin to another man. When he was arrested, the police officers frisked him and found eighteen other bags of heroin in the pocket of his jacket. He was charged with criminal heroin possession in the third degree. He was convicted by a jury and sentenced to a maximum prison term of twenty years and a minimum prison term of ten years.

He appealed but his appeal was denied after two years. In the meantime, the man had finished serving six years of his minimum prison term of ten years. While he was serving his prison term, the legislature of New York passed the Drug Reform Law. A New York Criminal Lawyer his new law aimed to reduce the prison sentences of low-level drug offenders by allowing them to apply for resentencing. If approved, they will be resentenced to a lower sentence provided that when the convicted felon applies for resentencing, he is currently in the custody of the Department of Corrections as he is serving a prison sentence; he was convicted of a Class B felony which was committed before the law was made effective; and the man was not convicted of another crime within the last ten years.

Published on: September 16, 2012

Court Looks at Parole Issue

by Stephen Bilkis

Petitioner was convicted in the Supreme Court, New York County, of the crime of manslaughter in the first degree and was sentenced to imprisonment for an indeterminate term of 15 to 25 years. On January 10, 1973 petitioner was paroled with a maximum expiration date of March 15, 1989. A New York Criminal Lawyer said that, while in Puerto Rico with permission of his parole officer, petitioner was arrested on an indictment returned by a Federal Grand Jury in the Southern District of New York, charging violation of Federal drug laws.

In early January, 1976 petitioner was extradited to New York and incarcerated at the Metropolitan Correctional Center in Manhattan. Petitioner’s parole officer visited him in Federal custody and questioned him about his arrest but did not serve him with parole violation charges. On March 20, 1976 petitioner was found guilty of conspiracy to violate Federal narcotics laws. Thereafter, the Board of Parole declared petitioner delinquent and issued a parole violation warrant against him. Petitioner was sentenced to a term of 7 1/2 years imprisonment on the Federal conviction.

On May 5, 1976 petitioner was transferred from the Metropolitan Correctional Center in New York City to the Federal Correctional Facility in Atlanta, Georgia. New York officials attempted to lodge the parole violation warrant at the Metropolitan Correctional Center. In light of the fact that petitioner had been transferred to Atlanta on the previous day the warrant was forwarded to that facility where it was eventually lodged against petitioner.

Published on: September 15, 2012

Court Decides Drug Charges

by Stephen Bilkis

On November 29, 1976 petitioner was indicted with a drug crime in the United States District Court, District of New Jersey, and charged with several counts, the first of which alleged that from January 1, 1976 to November 18, 1976 certain defendants, including petitioner, “did knowingly and wilfully combine, conspire, confederate and agree together with each other and others to manufacture, possess with intent to distribute and to distribute methamphetamine hydrochloride, a schedule II controlled substance”. In December, 1976 petitioner was indicted by the Sullivan County Grand Jury and charged with three counts, the first being cocaine possession of a controlled substance (methamphetamine); the second being conspiracy to engage in the illegal manufacture, possession and sale of methamphetamine; and the third being criminally using drug paraphernalia for the purpose of preparing methamphetamine.

Petitioner entered a plea of guilty to the first count of the Federal indictment and was sentenced to an indeterminate period of imprisonment, with a maximum of three years. Petitioner has commenced this proceeding to prevent respondents from prosecuting him on the Sullivan County indictment.

A New York Criminal Lawyer said the respondents concede that petitioner’s plea to the Federal conspiracy charges precludes prosecution upon the conspiracy count of the Sullivan County indictment. There remains, however,the charges of criminal possession and criminally using drug paraphernalia.

Published on: September 15, 2012

Court Looks at Illegal Contraband Case

by Stephen Bilkis

In this case, two police officers were on routine motor patrol in Bronx County when they observed a car with its trunk lock “popped out.” They directed the driver of the car to stop. As the officers approached the car, a single passenger in the rear appeared to be fumbling with something. That passenger opened the rear door and attempted to flee. One of the officers grabbed him, and, after a struggle, succeeded in removing defendant’s hand from his left front outer jacket pocket. The officer recovered a brown paper bag which, upon later discovery, contained cocaine of an aggregate weight of 8 7/8 ounces. A New York Criminal Lawyer said the motion court concluded that the evidence, before the Grand Jury, of defendant’s knowledge of weight was legally insufficient to sustain the charge of criminal cocaine possession of a controlled substance in the first degree. It, therefore, reduced count one of the indictments from criminal possession of a controlled substance in the first degree to criminal possession of a controlled substance in the seventh degree. The Appellate Division affirmed.

The police stopped defendant for a traffic infraction while he was driving in Bronx County. A plastic bag containing 3 1/4 ounces and 3 grains of cocaine was recovered from the automobile. The motion court found no evidence of defendant’s knowledge of the weight was presented to the Grand Jury. It reduced count one of the indictments from cocaine possession of a controlled substance in the second degree to criminal possession of a controlled substance in the seventh degree. It also dismissed count two of the indictment which charged criminal possession of a controlled substance in the third degree. The Appellate Division modified in the case by reinstating count two, and otherwise affirmed.

A New York Criminal Lawyer said that, in a joint memorandum which determined both Sanchez and Garcia, the Appellate Division noted that the trial court properly concluded that the evidence before the Grand Jury was insufficient to establish that defendants possessed the requisite knowledge of the weight of the substance they possessed. Regarding the defendant, the Appellate Division determined that the trial court erred by dismissing count two of the indictment charging defendant with criminal possession of a controlled substance in the third degree. The Court reasoned that intent to sell may be established by proof that a defendant possessed a significant quantity of drugs. Thus, as to the present case, the Appellate Division reinstated count two of the indictment. A Judge of this Court granted the People leave to appeal in both cases, and, in the present case, granted defendant leave to cross-appeal.

Published on: September 15, 2012

Defendant Files Motion to Supress

by Stephen Bilkis

The defendant in this case was charged with Rape in the first degree. He filed a motion to suppress any line-up or photograph identification. He argued that the result of a line-up conducted by the Suffolk County Police Department violated his rights under the Fourth, and Fourteenth Amendments of the United States Constitution, and his privilege against self-incrimination and his right to counsel as guaranteed by the Fifth, Sixth and Fourteenth Amendments of the United States Constitution.

A New York Criminal Lawyer said the Prosecution opposed defendant’s motion, stating that ” . . . defendant has failed to make any factual allegations which are required pursuant to § 710.60 subd. (1) of the CPL . . . ” and therefore, “defendant’s motion . . . should be denied as a matter of law pursuant to § 710.60(3)(b) of the CPL.” However, in the alternative, the Prosecution asserted that defendant’s constitutional rights were not violated.

In support of his motion, Defendant presented an affirmation made by his attorney upon information and belief, the source of his information and the grounds for his belief being the defendant. The affirmation states that the lineup conducted by the Suffolk County Police Department ” . . . was conducted without defendant’s consent or waiver of the presence of counsel . . . ” and that defendant was ” . . . physically forced to participate in a line-up without the benefit of his Miranda warnings or presence of counsel known to the members of the Sixth Precinct to be at that time, representing defendant.”

Published on: September 15, 2012

Defendant Had Eviction Notice Filed Against her for Drug Activity

by Stephen Bilkis

On August 2006, a detective recovered a loaded handgun and approximately 300 small glassine and zip lock bags which were later tested and found to contain a total of 1/8 oz + 0.2 grains of heroin and 1/8 oz + 4.5 grains of cocaine from a woman’s bedroom. An individual who does not live in the apartment and who was not named as an opponent was arrested at the scene. The woman was later arrested at the apartment when she arrived home from work.

a New York Criminal Lawyer said the woman testified that she was a working single mother of two children, who were 10 and 12 years old at the time. During the summer, her sister generally watched her children when she went to work. When her sister was unavailable to see her children, the woman had to ask her neighbors to watch her children during working hours. The man was one of the neighbors who lived with his mother in the same building.

The woman testified that the man did not live in her apartment, that he did not have keys to her apartment and that he watched her children approximately six or seven times during that summer.