Criminal Procedure

Published on: September 7, 2012

Court Looks at Jurisdiction Issue

by Stephen Bilkis

When people have contacts that are strong in other countries, they can sometimes become confused about how to handle family law situations so that they are in compliance with the laws of New York. New York is well known for being a hub for many different cultures. Many people from other countries use New York as a port of entry into the United States. However, a New York Drug Crime Lawyer said many people who immigrate to the United States to find work or a better life maintain the ties that they had in their home country. It can be easier for them in many cases to continue to rely on the legal system that they grew up with and understand in their home country. What they do not realize is that if they have become residents of New York, then they will have to comply with the laws of the state of New York in order to ensure that they are in compliance with the legal system here.

In 1901, a man from Havana, Cuba met and married a woman in New York. They established a home and a family in New York. On January 11, 1934, the pair decided to separate. The wife was granted custody of the children and she was awarded alimony and child support. The separation was conducted pursuant to the laws of New York. The case was handled by the Supreme Court of Bronx County in New York State. In 1955, the husband died and the wife discovered that in 1934, the husband had gone to Cuba and obtained a foreign divorce decree. She did not know then or at the time of his death that he had gotten a divorce. She was not served and she was not present in the court. She did not have any representative present in the court. After the divorce was obtained, she was never notified that the husband had gotten a divorce.

When he died, she discovered that he had obtained a divorce and she was not included as a person who was family in his estate. She filed an appeal in probate court to be given the status of his wife in the probate of his estate. A New York Criminal Lawyer he contends that she never knew that he had obtained a divorce. She further contends that the foreign divorce was not legal because they were both living in the Bronx in New York at the time that her husband had divorced her in Cuba. A Nassau Drug Possession Lawyer said she maintains that it was an illegal action for her husband to appeal to a court with no jurisdiction over the couple to obtain a divorce. She points out that they had lived in the Bronx for more than thirty years at the time that he obtained a divorce in Cuba. he filed a motion with the court for a summary judgment in her favor determining that for the purposes of inheritance in his estate, that she should be considered his widow with all of the legal privileges that widowhood would entail.

Published on: September 7, 2012

Defendant Moves to Have Sentence Set Aside

by Stephen Bilkis

The defendant moves pursuant to Section 440.20 of the Criminal Procedure Law to set aside the sentence imposed upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law.

A New York Drug Possession Lawyer said the sole issue raised by the defendant is whether he could properly be sentenced under the Penal Law without first having been examined pursuant to Section 81.19 of the Mental Hygiene Law (formerly Section 207) where he was charged with a violation of Article 220 of the Penal Law.

Section 81.19(a) states:

Published on: September 7, 2012

Defendant Contends Evidence Should be Supressed

by Stephen Bilkis

On March 22, 1996, the police obtained a search warrant for 2130 East Tremont Avenue, Apartment 7E, in Bronx County. The warrant authorized seizure of cocaine possession and crack-cocaine possession and evidence tending to demonstrate that the premises are utilized for the unlawful possession, packaging and sale of crack-cocaine and cocaine, to wit: scales, plastic bags and other paraphernalia. The warrant was issued in conjunction with a long-term narcotics investigation, during which undercover officers had purchased large amounts of cocaine from occupants of the subject apartment on several prior occasions.

A Bronx Drug Crime Lawyer said that, on the same evening, a detective and several other officers executed the search warrant. Upon entering the apartment the detective saw four individuals, two of whom he recognized as subjects of the investigation. The police searched the apartment and recovered a large amount of currency, narcotics, a gun and several forms of drug paraphernalia from inside the apartment. Police officers stationed outside the building recovered drugs wrapped in a paper towel, which had been thrown out of a window by one of the occupants of the apartment.

A New York Criminal Lawyer said about 20 to 30 minutes after the initial police entry, the apartment “buzzer” rang while the police were completing their search. The officers stationed outside the building informed the detective by radio that a Hispanic male was ringing the downstairs buzzer. The detective instructed them to allow the man to enter the building, and further instructed the officers in the hallway to stay out of sight.

Published on: September 6, 2012

Court Looks at Whether Key Evidence Should be Excluded

by Stephen Bilkis

This involves a criminal case where the court excluded the evidence sought to be introduced in a prior, uncharged incident stating it was largely irrelevant from the alleged crime from which defendant is being indicted.

A New York Criminal Lawyer said on September 20, 1985, police officers chased herein defendants who are driving a livery or gypsy cab for suspecting to have stolen the vehicle. The officers then chased the defendants from the footbridge toward a ramp of the Henry Hudson Parkway. Reaching the bottom of the bridge, and proceeding along the exit ramp, defendant allegedly turned around and once again fired at the officers; neither officer was struck by a bullet. This time police officers returned fire, but did not strike his target. The absconders then proceeded north, away from the footbridge, and disappeared. After sometime, they were apprehended and charged with attempted murder and gun possession.

The prosecution’s star witness testified that on September 11, 1985 while driving his gypsy livery cab, defendants put a gun on the back of his head. He claimed that defendants stole his car and his money with a gun.

Published on: September 5, 2012

Court Orders New Trial

by Stephen Bilkis

Plaintiff commenced this action seeking damages for false arrest, false imprisonment and malicious prosecution, based upon his arrest for assault which later became a murder charge for acts allegedly committed. Plaintiff was incarcerated for 333 days. The charges remained pending for nearly 8 more months after plaintiff was released from custody. A New York Criminal Lawyer said that, all charges were dismissed on the motion of the Bronx County District Attorney. After trial in this action, the jury rendered a verdict in favor of plaintiff, awarding damages to plaintiff in the sum of 2.7 million dollars for false arrest and 7.1 million dollars for malicious prosecution.

A Bronx Criminal Lawyer said that, defendant, the City of New York (City) now moves pursuant to CPLR 2221 and 4404 (a) for an order (1) setting aside the jury’s verdict on liability as a matter of law, or, in the alternative, (2) setting aside the jury’s verdict and ordering a new trial as the jury’s liability verdict is against the weight of the evidence, or, in the alternative, (3) dismissing the malicious prosecution claim for failure to prove proximate cause, or, in the alternative, (4) setting aside the damages verdict and ordering a new trial on damages as the jury award was excessive and contrary to the weight of the evidence, and for other related relief.

Plaintiff opposes the motion. A New York Criminal Lawyer said the City’s renewal of its trial motion to dismiss the complaint for failure to establish a prima facie case or for a directed verdict is denied as the court adheres to its original decision on the record.

Published on: September 4, 2012

Special Narcotics Court Reviews Case

by Stephen Bilkis

In New York City, there is a special Grand Jury that handles cases from the Special Narcotics Courts of the city. When they are called to review a case, it generally means that the persons who are in line to be indicted are the result of many months of undercover police work designed to apprehend the most dangerous drug dealers. This group is not interested in apprehending the lower level drug dealers. A New York Criminal Lawyer said they are interested in making sure that the drug suppliers that provide narcotics to the street level dealers are put behind bars for good. To ensure that this happens, the narcotics officers are specially trained to be aware of all of the different search and seizure laws that apply to drug cases so that they do not make careless errors that will wind up costing them a conviction in court. Unfortunately, they occasionally do make mistakes.

It is commonly understood that people who are engaged in drug trafficking are often involved in other felony crimes. However, a New York Sex Crimes Lawyer said when an undercover officer is made aware of criminal wrongdoing through his position with the narcotics task force, they cannot simply ignore the fact that they are entrusted to enforce all of the laws of New York. In 2004, one narcotics officer was advised by an informant that there was a group of individuals who were forming a narcotics robbery gang. Their goal was to rob drug traffickers of their money and drugs and then sell the drugs themselves. They assumed that robbing drug dealers would be easy because the drug dealers are not likely to go to the police and tell them that they had robbed. The narcotics officer began working with another undercover officer to arrest this gang of thugs. They let it be known that they would be interested in joining the gang so that they could get close to the people involved and formulate a case.

One of the undercover officers was invited to join the robbery gang. He let the other one know about the intentions of the group so that they could maintain proper surveillance. Ultimately, on the evening that the robbery was planned, the group intended to rob some drug dealers of 60 kilos of cocaine (drug possession) and an unknown amount of cash. The undercover officer was picked up by his contact person and three other males. They loaded the cars with multiple guns and drove to the address that they intended to rob. The police were already there. The robbers were taken into custody and charged with multiple felony offenses. Once they were all indicted, their attorneys filed motions to dismiss the charges because they believed that the Special Grand Jury for the Narcotics Court did not have jurisdiction to handle the robbery and firearms charges. Their logic hinged on the fact that the subjects were not charged with even one narcotics charge.

Published on: September 3, 2012

Defendant Moves to be Resentenced Pursuant to Drug Law Reform Act of 2009

by Stephen Bilkis

Defendant was convicted of Criminal Sale of a Controlled Substance in the Third Degree and on November 19, 2002 given an indeterminate sentence of imprisonment with a term of 2-6 years.

The People assert that the Defendant engaged in the sale of $350 of cocaine to an undercover police officer on two occasions and that on later date cocaine and drug paraphernalia were recovered from the apartment where the sales took place. In addition to the instant offense, Defendant was convicted of Criminal Possession of a Controlled Substance in the Seventh Degree (drug possession) and sentenced to time served in 2002, convicted of Invalid Use of a Credit Card with Intent to Defraud and sentenced to time served in 1999 and convicted of Criminal Trespass in the Second Degree and sentenced to four days in jail in 1998.

The Defendant was initially released to parole supervision on the instant offense on July 17, 2003. Parole violation warrants were issued for the Defendant. In these warrants, it was alleged that the Defendant had used cocaine and marijuana, failed to report to his parole officer on multiple occasions, left his approved residence and failed to attend two programs required by the Division of Parole. A Bronx Drug Crime Lawyer said that, the Defendant was re-incarcerated for a parole violation and continued to be in prison at the time the instant motion was filed. Defendant has been punished for one disciplinary infraction while in prison. That was a Tier 3 infraction on December 26, 2008 for violent conduct; fighting and disorderly conduct for which he received 30 days of keep lock time.

Published on: September 2, 2012

Defendant Refuses to Give DNA Sample

by Stephen Bilkis

Seven men were grouped together outside a house. They were talking loudly together and drinking. One of the neighbors called the police and so two uniformed police officers were dispatched to the scene. The police officers had their police badges and did not have their guns drawn.

A New York Criminal Lawyer said as they were speaking with the group of seven men, one of the men stood up and pulled up his pants by his waistband and walked away in the direction of the house. When the man adjusted his pants, a small plastic bag fell from his pant leg. The police officer saw the plastic bag and it was a re=sealable bag contained dried herbs. The police officers seized the plastic bag from the ground and smelled it and they thought it was marijuana. Subsequent testing revealed it to be marijuana as suspected by the police officers.

They followed the man who had gone into the house. A New York Criminal Lawyer said the police officers knocked on the door and the residents of the house opened the door to the police officers and let the police officers in to the house. When the police officers went into the house, they noticed that a group of men were also drinking. Their bottled alcoholic beverages were contained in a cooler which lay open on the floor.

Published on: September 2, 2012

Court Decides Defendant Should be Offered the Judicial Diversion Program

by Stephen Bilkis

A hearing was held on the accused man’s request to enter the Judicial Diversion Program. The man has been charged in a 23 count indictment with 21 counts of criminal possession of a forged instrument, one count of grand larceny and one count of scheme to defraud. Both the State and the defense counsel have submitted post-hearing memoranda of law on the issue of the man’s eligibility for judicial diversion.

The State argue that the man may not be considered an eligible accused as that term is defined in the criminal law, since only one of the counts contained in the 23 count indictment would render him eligible for Judicial Diversion. The State oppose the man’s participation in Judicial Diversion, asserting that since he has been charged with numerous offenses in the indictment which are not listed in the Judicial Diversion statute, it renders him ineligible for the program.

The man contends that he is eligible for the Judicial Diversion Program because he is charged with grand larceny, which is an included offense under the statute. A New York Criminal Lawyer said he argues that the statutory language of the Criminal Procedure Law does not exclude his participation simply because he is also charged with offenses which fall outside the statute. None of the other offenses he is charged with in the indictment are specifically listed in the Criminal Procedure Law as offenses which would exclude him from the program.

Published on: September 1, 2012

Issue Involved Whether Defendants Guilt was Proven Beyond a Reasonable Doubt

by Stephen Bilkis

In this criminal case, defendant appealed from a judgment of the County Court, Nassau County (Jonas, J.), rendered November 18, 1991, convicting him of attempted murder in the first degree, criminal possession of a weapon in the second degree (two counts), reckless endangerment in the second degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the fourth degree, upon a jury verdict, and imposing sentence.

The issue in this case is whether defendant’s guilt was proven beyond reasonable doubt.

A New York Criminal Lawyer said the Court held that, the evidence presented at trial was legally sufficient to establish beyond a reasonable doubt that the defendant had the requisite intent for criminal possession of a controlled substance in the third degree. The defendant was in possession of 12.312 grams, or .434 ounces, of cocaine. There was legally sufficient evidence of the element of intent to sell a controlled substance based upon the defendant’s possession of this quantity of cocaine.