Criminal Procedure

Published on: September 10, 2012

Defendant Moves to Suppress Physical Evidence

by Stephen Bilkis

An undercover policeman, equipped with a hidden transmitter, entered a social club and, for fifty dollars, purchased cocaine from a man in the front room. He left the club and radioed his backup team. Because the transmission was garbled, they understood only that he had made a buy. The sergeant in charge ordered the team to enter the club and secure it so that no one could leave. A New York Criminal Lawyer said he then went down the street to meet the undercover who described the seller: a bearded black male, thirty years old, medium build, wearing a tan cap, brown leather jacket, glasses, white sneakers, dungarees, and a large silver bracelet.

A Bronx Drug Crime Lawyer said that, the sergeant entered the club, found six or eight persons in the front room, but none of them fit the description. They were released. In the back room were twenty to thirty-five people shooting craps. (The defendant claims he was the banker of the game and thus handled all of the wagered money.) The players were made to walk in single file past the sergeant. The defendant was held because he “fit the description a hundred percent”. But, belying certainty, the sergeant also held three or four others because they “partially fit the description”. He had all of them frisked for weapons. Then, obviously to pinpoint the drug seller among the suspects, the sergeant asked which of them had any money. When the defendant and another acknowledged that they had the sergeant said, “Let me have it”. A New York Criminal Lawyer said the defendant handed over $101, included in which were the marked fifty dollars the undercover had used in the purchase. The defendant was told he was under arrest and the others were released.

The defendant was taken by police car to the station where the undercover looked at him through a one-way mirror. He said that “he thought it was him, but he was not sure”. The sergeant said “If you are not a hundred percent sure it’s him, then I’m going to release him”. Again, the undercover responded that “he could not be a hundred percent sure at that time”. While the process to release the defendant was going on, a cap and glasses found in the transporting car were placed on him. After that the sergeant told the undercover that the defendant “fits the description. He has the bracelet. He has the beard, the cap. He has the glasses and he has the jacket. He has the money”. The undercover then identified the defendant as the drug seller.

Published on: September 10, 2012

Defendants Court Had Improper Jurisdiction in Rape Case

by Stephen Bilkis

On December 10, 1980, two men armed with a shot gun entered a fast food restaurant in Nassau County. They threatened the employees with bodily harm if they did not hand over the cash in the cash box. When the two female employees handed to the two armed men all the cash from the cash box, the men forced the women to go outside the restaurant. A New York Criminal Lawyer said they forced the women to ride in their car which was parked outside the restaurant.

The two armed men drove for twenty minutes from the fast food restaurant in Nassau County to a dead end street somewhere in Suffolk County. During the drive, the men took turns feeling up the women’s skirts and shirts. The men fondled the women’s breasts and sex organs.

When they got to the dead end street in Suffolk County, the men took turns raping the two women. When the men were exhausted, they threatened the women and their families with death should they report the rapes to the police. A New York Sex Crimes Lawyer said the two men then let the two women go.

Published on: September 10, 2012

Defendant Contends Court in Violation of 5th Amendment

by Stephen Bilkis

The facts of these “buy-and-bust” cases are straightforward. In this case, an undercover narcotics officer approached a man entering a store in Manhattan and asked where he could purchase drugs. Without answering, a the man walked over to defendant, asked him if he had “anything” and told him that the undercover was “looking.” Defendant said “you know how it works.”

Defendant then whistled across the street to defendant and raised two fingers. Defendant instructed the officer to follow the man across the street to a Chinese restaurant around the corner from a school. The two men entered the restaurant with defendant following behind them. Inside the restaurant, the man told defendant said to “give the officer one and to give me one too.” After handing the man a “small object” in exchange for a sum of money, defendant asked the officer, “how many do you want?” The officer replied, “one,” and handed Sepulveda $10 in prerecorded buy money in exchange for a glassine of heroin.

After the sale, the officer radioed the field team that he made a “positive buy” and gave a description and location of the sellers. Within minutes, the field team arrived at the location and apprehended both defendants, both of whom matched the descriptions given by the undercover officer. Shortly thereafter, the undercover officer made a drive-by confirmatory identification of both men. Although the arresting officer recovered heroin (drug possession) and prerecorded buy money from no drugs were recovered from defendant.

Published on: September 9, 2012

Petitioner Requests a Recalculation of his Sentence

by Stephen Bilkis

In 1996, after a jury trial, petitioner was convicted of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree. He was sentenced to concurrent indeterminate terms of 7Â½ to 15 years on each charge. In 1997, petitioner was convicted of manslaughter in the first degree under. Thus, at the time of sentencing on the manslaughter conviction, petitioner was “subject to an undischarged term of imprisonment imposed at a previous time by a court of this state”. A New York Criminal Lawyer said pursuant to the terms of a negotiated plea agreement, petitioner pleaded guilty to the manslaughter charge. Consistent with the discretion afforded by statute to impose either a concurrent or consecutive period of incarceration, the court sentenced petitioner to a term of 7Â½ to 15 years, to be served consecutively with the sentence imposed following his conviction on the unrelated controlled substance charges.

A Bronx Criminal Lawyer said that, the two cases against petitioner were consolidated for appeal. This Court affirmed the manslaughter conviction and reversed the earlier drug conviction. Rather than seek retrial, the People accepted petitioner’s plea of guilty to criminal sale of a controlled substance in the third degree in exchange for a sentence of 7Â½ to 15 years, to be served concurrently with the sentence imposed on the manslaughter conviction. Supreme Court sentenced petitioner in accordance with the plea agreement in October 2000 and issued a commitment order.

A New York Criminal Lawyer said that, in response to his inquiry regarding eligibility for parole, the Department of Correctional Services informed petitioner that his aggregated sentence was 12 to 24 years based on two terms of imprisonment that are to be served consecutively. In a letter to counsel, the Department took the position that pursuant to the decision of the Appellate Division, Fourth Department, in Matter of Muntaqim v Herbert, the “relationship between such sentences had to remain consecutive. Thus, the Court that resentenced Mr. Murray on indictment #5174/94 could not change it from consecutive to concurrent.”

Published on: September 9, 2012

Court Looks at Defendant’s Repeated Parole Violations

by Stephen Bilkis

This case is about the Petition for a Writ of Habeas Corpus filed by the Petitioner who challenged his continued incarceration in the custody of the New York State Department of Correctional Services (DOCS). He argued that the delinquent time assessment imposed on November 5, 2008 following his final parole revocation hearing already expired on February 17, 2010.

A New York Criminal Lawyer said it all started on September 10, 1997 when petitioner was convicted of the crime of Arson in the second degree and was given an indeterminate sentence of 7 to 14 years. In 2006, he was released from DOCS custody to parole supervision. His parole was subsequently revoked and was sent to a drug rehab center. In January 2007, Petitioner was released back to community based parole supervision, but thereafter, violated again the conditions of his release. He was returned to DOCS custody as a parole violator.

On September 10, 1997 petitioner was sentenced in Oneida County Court, to an indeterminate sentence of 7 to 14 years, upon his conviction of the crime of Arson 2°. Petitioner was first released form DOCS custody to parole supervision in September of 2006. His parole, however, was subsequently revoked but restored at the Willard Drug Treatment Campus. Petitioner was released from Willard back to community-based parole supervision in January of 2007 but he again violated the conditions of release and was returned to DOCS custody as a parole violator.

Published on: September 9, 2012

Defendant Claims his Right to a Speedy Trial was Denied

by Stephen Bilkis

The defendant was convicted after trial of criminally selling a dangerous drug in the third degree and cocaine possession in the fourth degree (drug possession). He had been indicted on June 14, 1971 and his case was moved for trial fifteen months later, on September 11, 1972. In the interim he had been convicted of a drug crime in Puerto Rico and since November 26, 1971 had been serving his sentence in the Atlanta Federal Penitentiary. Prior to the voir dire on the trial herein, he moved orally to dismiss the indictment for failure to be accorded a speedy trial

The motion, having been made prior to the commencement of the trial, was timely. The defendant’s incarceration in Atlanta can serve neither as an explanation for the delay nor as an excuse .

The reason for the motion was that the defendant ‘feels one or more of his witnesses may now be unavailable to him’. The defendant’s counsel explained that a male and a female had been indicted with the defendant; that while the male was available as a witness for the defendant, the female had not appeared in court and that there was a bench warrant out for her. A New York Criminal Lawyer said the court, stating that the male was available as a witness and that the female had disappeared before the defendant had demanded a trial, denied the motion.

Published on: September 8, 2012

Defendant Questions Sufficiency of Evidence

by Stephen Bilkis

An undercover police officer went to buy drugs. He stayed at a street corner waiting for someone to approach him. The accused approached the police officer and they talked for a while. The accused asked the police officer if he was looking to score some crack. The police officer said that he was looking for crack. A New York Criminal Lawyer said the accused told the police officer that he too was looking to buy some crack. They waited a bit more where they were but no one approached them.

The two decided to take a walk to a busier street corner. As they waited there another man (the co-accused) came up to them and asked them if they were looking for anything in particular. When the undercover police officer and the accused said they were, the co-accused gave them an address where they could go. The co-accused told the two men to wait inside the building.

The undercover police officer and the accused then walked all the way to the address given by the co-accused and when they got there, they went inside the building and waited. The co-accused later appeared and went up one flight of stairs, down the hall into the rear of the building.

Published on: September 8, 2012

Court Decides if Defendant Should Receive an Enhanced Sentence

by Stephen Bilkis

This involves a drug crime case where the Court denied the People’s appeal to consider a defendant’s perjury at trial in enhancing his service of sentence.

Defendant was convicted after a jury trial, at which he testified, of Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Fourth Degree (drug possession). In response to the defendant’s pre-sentence memorandum requesting leniency in sentencing, the District Attorney’s Office, citing United States v. Dunnigan, 507 U.S. —-, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993), contends that the defendant should receive an “enhanced sentence”, i.e., a higher sentence than the Court would otherwise impose based upon his alleged perjury at trial. The People claim this perjury is established by the contradictions between defendant’s trial testimony concerning his cocaine possession and his statements about his addictions to the social workers of the Legal Aid Society in the pre-sentence memorandum submitted to the Court on his behalf.

The People argue that this falsehood, coupled with defendant’s false testimony claiming innocence of the charges for which he stood trial and was convicted, constitute willful and materially false statements, i.e., perjury, that may be considered by this Court in assessing the defendant’s history and character to determine an appropriate sentence. A New York Criminal Lawyer said defense counsel contends that this Court should find such consideration irrelevant. Defense concedes that the majority of reported state jurisdictions permit consideration of a defendant’s trial perjury as a factor in enhancing sentence on the ground that it evidences lack of potential for rehabilitation.

Published on: September 8, 2012

Court Discusses Immunity Offer Made by Grand Jury

by Stephen Bilkis

Television shows often idealize the criminal who turns states evidence and is given immunity from prosecution. Because of this, people who commit crimes sometimes think that they can just turn evidence on a co-defendant and get immunity for the crimes that they have committed. A New York Criminal Lawyer said the reality is a little different. In order for a prosecutor to be interested in conferring immunity on a person who has committed a crime, the evidence that they are able to provide must be critical to the conviction of a criminal who is more valuable to the prosecutor than they are. That type of situation does not happen frequently. When it does, it is involving crimes that are serious in nature.

One 1980 case involved a man who had been a co-conspirator in a gasoline station conglomerate scam. He and his partner had purchased several gasoline stations in the 1970’s with the intention of having a thriving business. Unfortunately, they discovered that they were not very good at that business and within the first year, they were in serious financial trouble. They had gone into debt with several major oil companies and knew that if any one of them called in the debts that were owed, the company would fail. They devised a scheme to prevent the oil companies from finding out that they were in trouble. They began to falsify the company records. They created fraudulent profit numbers in order to get more credit from the oil companies and keep them from calling in the debts that the company already owed them. When they began to claim fraudulent profits, they had to maintain the scam with fraudulent information reported on tax returns and in the company business records. Like so many criminal schemes, what seemed like a one- time lie soon snowballed out of control. The lies grew and the fraudulent records increased. Before long, they were discovered and arrested. One of the men maintained that the other partner was the driving force behind the idea to defraud the oil companies. He approached the grand jury with the proposal that he would testify against his partner in return for immunity. A New York Sex Crimes Lawyer said the grand jury agreed as far as one of the schemes was concerned. Later, when the prosecutor indicted him on one of the other charges, he claimed that he had been given immunity from prosecution by the grand jury if he had testified before them.

The state was called upon to clarify what the intentions had been in the grand jury room when the offer of immunity was made. They needed to determine if the offer was made solely on that charge, or if the agreement had been made to provide immunity from prosecution on all related offenses for the man who agreed to testify against his business partner. In order to determine what the actual deal entailed, the Supreme Court needed to review all of the records from the grand jury testimony. A New York Criminal Lawyer said the ability to interpret exactly what was intended soon became clear.

Published on: September 7, 2012

EMT Assaulted During Call

by Stephen Bilkis

Many people do not appreciate the unpredictability that comes with the job for an emergency medical technician. Often, a New York Sex Crimes Lawyer said they do not have any idea of the volatility of the situation that they have been dispatched to. In most cities, if the call is for a victim of a fight, the EMTs are directed to wait until police officers have certified that the scene is safe for them to enter before they go in. In some situations, they are sent into a volatile situation without advance notice.

On Christmas Eve morning of 2006 at about two thirty, one EMT crew discovered that no call can be considered safe, even as you are leaving it. The man and woman team had responded to a call of a woman with an injured hand and possibly another injured person at the scene at 190 Butler Street in Brooklyn, New York. It appears from the transcript of the call that the technicians were notified that the injuries were the result of a fight, but police were not dispatched to the call until the female EMT placed the radio call for emergency assistance.

The team had arrived at the apartment building and noticed that there was a large group of people in front of the building. Everyone seemed to be in a festive mood and greetings were exchanged. A New York Sex Crimes Lawyer said the team was taken to an apartment in the back where they treated the female with the injured hand and recommended that she go to a hospital for x-rays. She told the team that she had been in a verbal argument with a man and had punched the wall and injured her hand. She stated that she would go to the hospital on her own and the team walked back to their marked ambulance.