Criminal Procedure

Published on: September 1, 2012

Court Rules on Discusses Exclusionary Rule

by Stephen Bilkis

The laws of arrest in the United States are well defined. The laws that provide a police officer with the ability to stop a car or a person to determine if they are involved in a crime are also well defined. However, in both cases, case law continues to define the limitations that exist when a police officer has contact with a citizen. A New York Criminal Lawyer said that as the laws stand right now, the landmark case of Terry v Ohio, 1968 still remain the predicate for a stop of a person by a police officer. This case also defines the limitations placed on the officer for patting down the outer garments of the stopped person to determine if that person is carrying a concealed weapon on their person.

One case, involved a detective who saw three men casing a drug store. The officer observed that the men were wearing bulky overcoats even though it was a hot day. The fact that the men were dressed in a manner that was incongruous of the weather conditions, made the officer pause to observe them further. While he watched, he saw that one at a time, the men would each walk up to the window in front of the store and look inside. That person would then return to the group and a discussion would take place. The officer determined that the men were probably concealing weapons under the large coats and that they were casing the store in an effort to determine the optimum opportunity to rob it. He approached the group and began to ask them questions. He was concerned that they were armed, so he ordered them to place their hands on the wall, and he patted down their outer garments. During the course of patting down the outer garments, the officer located a handgun in the pocket of the defendant’s coat (possession of a weapon). He and the others were placed under arrest. The defendant’s attorney claimed that the men were not breaking any laws at the time that the police officer approached them. He maintained that the officer had no right to stop the defendant or to search him. He appealed the conviction of the defendant to the Supreme Court on Constitutional grounds that the police officer had violated the defendant’s Constitutional right under the Fourth Amendment protections against illegal search and seizure.

The court disagreed. The Supreme Court ruled that it would not be reasonable to prevent an officer from patting down the outer garments of a person who he believed was concealing a firearm and could create a substantial risk to the officer or surrounding people. They determined that the officer had not violated the defendant’s rights because the search was not intrusive until the officer felt an object inside the defendant’s coat that the officer recognized to be the same size, weight, and shape of a handgun. The limitations on a stop under defendant, is that the officer must have articulable reasonable suspicion to stop the subject.

Published on: August 31, 2012

Defendant Contends He Should Have Received Concurrent Sentences

by Stephen Bilkis

In this criminal case, the proof established that in the five-year period from 1984 to 1989, the defendant represented himself as a spiritual healer, generally charging people $20 per consultation. During the consultations, the defendant purported to transform himself into various spirits who would offer advice and claim that they could cure illnesses. A New York Criminal Lawyer said the defendant, acting through these spirits, induced victims to lend him sums of money, sometimes in the thousands of dollars, which “loans” he never repaid. The defendant also told some of his victims that he was an agent of the Federal Bureau of Investigation, using this false claim as a further means of obtaining money from them.

A Queens Grand Larceny Lawyer said that, defendant was convicted of grand larceny in the second degree, grand larceny in the third degree (four counts), scheme to defraud in the first degree, criminal impersonation in the second degree (four counts) and fortune telling (five counts), upon a jury verdict, and sentencing him to an indeterminate term of 3 to 9 years imprisonment for grand larceny in the second degree, four indeterminate terms of 1 1/2 to 4 1/2 years imprisonment for grand larceny in the third degree, an indeterminate term of 1 to 3 years imprisonment for scheme to defraud in the first degree, four definite terms of one year imprisonment for criminal impersonation in the second degree, and five definite terms of 60 days imprisonment for fortune telling, with all terms of imprisonment to run consecutive to each other.

A New York Criminal Lawyer said that, the defendant claims that he was not given fair notice of the grand larceny charges against him to enable him to prepare an adequate defense to those charges. He contends, in essence, that proper notification of the charges should not be reduced to a matter of guess work, and that a conviction on any count for which the defendant has not been given proper notification of the nature of the charge should not be countenanced. Specifically, neither the indictment, the bill of particulars, the Jury minutes supplied to the defendant which were redacted as to the victims’ names, the People’s opening statement, nor much of the trial, served to fully inform the defendant as to which individual complainants corresponded to the various counts of larceny.

Published on: August 31, 2012

Court Rules on Juror Misconduct

by Stephen Bilkis

When jurors are chosen to sit on a trial jury, they are required to take the position seriously. The responsibility that is inherent to the position of a juror in a trial is heady to say the least. That is especially true when the person is called to put their lives on hold while they sit for weeks on a highly publicized trial jury. A New York Criminal Lawyer said that it can be almost impossible for anyone to shut themselves off from any information that relates to a trial that is in the news and on the television and radio every time that they turn one on. It is incumbent upon the court to ensure that the juror is aware of their responsibility and to take action against those jurors who violate the standards that are set.

Because the court realizes that it is sometimes impossible to prevent a juror from being exposed to some type of information about a case that is highly publicized, it is often at the discretion of the court to determine if that juror can put aside the information that they have been exposed to outside of the courtroom in order to make a decision on the case based solely on the information that is presented in the court. In most cases, a court simply asks the juror and accepts the juror’s response. However, there are times when that is not possible, for instance it may not be possible if the juror has been discovered to have discussed the case outside of the jury room with an uninvolved acquaintance. In most cases, when a juror is found to have participated in that type of misconduct, they will be dismissed from the jury and an alternate will take their place.

In one case that was a highly publicized rape and robbery case from 1973, the juror went to dinner with some friends while she was sitting on the jury. While at dinner, they were joined by some acquaintances of another one of her friends. In this group was a defense attorney. Over dinner, the woman told her tablemates that she was on the jury and that she had been instructed not to discuss the case. She stated that she had made up her mind about the man’s guilt, but that she would listen to the viewpoints of the other jurors before putting in her vote. Later in the day, she found out that the woman was a defense attorney and pointed asked her if she was familiar with the accuracy of DNA evidence as well as a few other questions. She also stated that she had looked on the computer to find out what the defense attorney’s credentials were. All of these statements are violations of the code of conduct for jurors. The defense attorney whom the woman had spoken to worked for the legal aid society.

Published on: August 30, 2012

Court Determines if Defendant was Unlawfully Adjudicated a Persistent VFO.

by Stephen Bilkis

In this case, the Nassau Criminal Lawyer said that, defendant was convicted of robbery in the first degree, a class B violent felony under Penal Law § 70.02 (1) (a). At his sentence, the People filed information alleging that defendant was a persistent VFO having been convicted of two previous violent felonies. The People alleged that on January 7, 1985, defendant was convicted of criminal possession of a weapon in the third degree in Nassau County and sentenced to a term of incarceration of 2Â½ years. The People also alleged that on July 18, 1986, defendant was convicted of burglary in the second degree in Nassau County and sentenced to an indeterminate term of incarceration with a minimum of 4 years and a maximum of 8 years. The People further asserted that the following time periods during which defendant was incarcerated were tolled from the 10-year limitation: January 18, 1985 to April 5, 1990, and December 14, 1991 to June 9, 1994.

A New York Criminal Lawyer said that, the court adjudicated defendant a persistent VFO and sentenced him to an indeterminate term of incarceration of 24 years to life, in accordance with the statutory guidelines set forth in Penal Law § 70.08.

Defendant now moves to set aside his sentence pursuant to CPL 440.20 on the grounds that he was unlawfully adjudicated a persistent VFO. In his motion, defendant claims that he was unlawfully adjudicated a persistent VFO. Defendant argues that his 1985 conviction cannot serve as a predicate in conjunction with his 1986 conviction because the sentence on his earlier case was not imposed until after the commission of the felony on the latter case. A New York Criminal Lawyer said to support his claim, defendant attached to his motion the commitment orders submitted by the Clerk of Nassau County to the State Department of Correctional Services on both the 1985 and 1986 convictions. Indeed, the orders confirm that defendant had been sentenced on his 1985 gun crime conviction on January 7, 1985-15 months after September 8, 1983, the date he committed the gun crime which led to his subsequent burglary conviction in 1986. Furthermore, the second violent felony offender statement submitted by the Nassau County District Attorney’s office upon defendant’s sentencing in 1986 establishes that the People did not rely upon defendant’s 1985 conviction to enhance his punishment. Instead, in 1986, the People relied upon defendant’s 1981 conviction of robbery in the first degree in Bronx County to establish that defendant was a second VFO.

Published on: August 30, 2012

Defendant Charged with Offering a False Instrument

by Stephen Bilkis

In this criminal case, in 1986 although the installation of individual water meters was required in commercial and industrial buildings, 630,000 one and two family homes were unmetered and billed for water on an arcane basis unrelated to usage and predicated on property frontage. A New York Criminal Lawyer said the City decided to meter these homes and to do so through a municipal installation project rather than by requiring the individual homeowners to install them. The City would use a competitive bidding process, and award contracts according to the boundaries of the City’s community boards. As is common in such contract bidding processes, the City prepared bid packages for prospective bidders. In addition to technical information and cost estimates, the bid package informed prospective bidders that they would be required to calculate labor costs in accordance with Labor Law Section 220, which requires contractors performing public works projects to pay the workers the prevailing wage. The bid packages let out in 1989 and 1990 also required that the contracting party would have to perform certain work known as pre-plumbing work. In essence, the contracts with the City would require that pre-plumbing work be supervised by a licensed master plumber.

After conducting pre-bid conferences, the City circulated an addendum to the bid specifications which set forth the specific wages that the bidders would be required to pay their employees. The defendants received this addendum. After the bids were publicly opened, the lowest bid was determined and the contracts were awarded to the defendants. A New York Criminal Lawyer said the defendants executed formal contracts, to which were annexed the bid information and the wage schedules, which were also incorporated by reference. Each contract provided: The wages to be paid and the supplements to be provided, for a legal day’s work, to laborers, workmen or mechanics employed by the Contractor shall not be less than the prevailing wages and supplement required to be paid to such employees, as ascertained and prescribed by the Comptroller in the Specifications attached hereto.

A New York Grand Larceny Lawyer said that, the indictment charges larceny by false promise, larceny by false pretenses, scheme to defraud, and filing of a false instrument, conspiracy, and perjury. The thrust of the indictment is that the defendants never intended to comply with the prevailing wage and pre-plumbing master plumber requirements. Among other evidence which was presented to the Jury was that the defendants calculated their bids based on piecework rather than hourly costs, that they promised workers the higher of piecework or hourly rate, but only paid a piecework rate that resulted in a lower wage than an hourly rate at the prevailing wages, that the defendants arranged with a licensed plumber to falsely make it appear that a licensed plumber was supervising pre-plumbing work, and that the defendants submitted false and perjurious forms to the City certifying they had complied with the contracts.

Published on: August 30, 2012

Court Discusses Larceny Charges

by Stephen Bilkis

In this case, Defendant has been charged with grand larceny, grand larceny by extortion, money laundering, and intimidating a witness.

Complainants are the principal officers of the general contractor engaged in the rehabilitation of a hotel. A New York Criminal Lawyer said the defendant demanded periodic cash payments from Complainants in exchange for a guarantee of labor peace. He has influence over union business agents monitoring the rehabilitation project. A portion of the collection was given to his organized crime associates to make sure the rehabilitation ran smoothly. Complainants believed these representations and that they were thereby initially induced to pay the defendant out of fear of economic harm. Jurisprudence dictates that fear of future economic harm is sufficient to establish extortion under the statute. Larceny by extortion does not require evidence of an actual ability to cause the threatened harm in the threatened manner, only that the person threatened believed the defendant possessed such ability. In this connection, the court noted that the evidence of the defendant’s assaults, reputation for violence and of his self-proclaimed ties to organized crime was properly admitted as contributing to the credibility of his threats and of the victims’ fear that they would be realized.

With respect to defendant’s indictment for grand larceny in the first degree, the bill of particulars clearly indicates with respect to this count that the Prosecution’s sole theory of larceny was extortion. The count, however, fails to specifically allege that the larceny was committed by extortion. Hence, the count is dismissed for failure to allege larceny by extortion.

Published on: August 29, 2012

Court Decides if Trial Court Erred in Vacating Sentence

by Stephen Bilkis

This is a proceeding brought pursuant to Article 78 of the CPLR to prohibit respondent a Justice of the Supreme Court, Bronx County from vacating petitioners’ convictions and the sentences imposed thereon in violation of Article 440 of the Criminal Procedure Law, and to prohibit respondents and District Attorney, Bronx County, from further prosecution of the petitioners on felony charges.

A New York Criminal Lawyer said on July 7, 1987 petitioners pleaded guilty to attempted grand larceny in the third degree. All parties apparently thought that defendants were pleading guilty to an “E” felony, since grand larceny in the third degree is a “D” felony. Accordingly, the defendant was sentenced as a predicate felon to 1 1/2 to 3 years in prison.

A New York Criminal Lawyer said that, attempted grand larceny in the third degree became a “D” felony on November 1, 1986. At the time of the commission of the acts alleged in the indictment, May 14, 1986, grand larceny in the third degree was an “E” felony and attempted grand larceny in the third degree an “A” misdemeanor. Thus, defendant Wilson was improperly sentenced to felony time that is 1 1/2 to 3 years in prison. A Bronx Grand Larceny Lawyer said that, petitioner Wilson commenced his sentence. Following the discovery of the error, the trial court vacated the sentence and conviction and reinstated the original felony charges. On February 23, 1988 this court granted a stay of the prosecution pending determination of this Article 78 proceeding.

Published on: August 29, 2012

Defendant Arraigned on a Fugitive from Justice Complaint

by Stephen Bilkis

The Facts:

On 20 May 2009, defendant was arraigned on a fugitive from justice complaint based on an arrest warrant issued on 11 May 2009, Delaware County of the Commonwealth of Pennsylvania. The arrest warrant charged the defendant with the following felonies: one count of Criminal Solicitation, two counts of Criminal Solicitation and one count of Criminal Use of a Communication Facility, all of which were allegedly committed on 2 October 2008.

On 27 October 2009, defendant sought to withdraw the Waiver of Governor’s Warrant of Extradition and Writ of Habeas Corpus (“Waiver of Extradition”) executed by him on his arraignment as a fugitive of justice from the Commonwealth of Pennsylvania on 20 May 2009.

Published on: August 29, 2012

Defendants Contend Court Lacks Jurisdiction

by Stephen Bilkis

The Facts:

Stemming from a grand larceny case where defendants were convicted, at an Extraordinary Special and Trial Term of the Supreme Court, of conspiracy in the fourth degree, hindering prosecution in the third degree and official misconduct, the Appellate Division, on appeal, found that the evidence was legally insufficient, unanimously reversed, expressly stating it did so on the law and the facts, and dismissed the indictment.

The people now appeal from the said judgment.

Published on: August 29, 2012

Defendant Contends Double Jeopardy

by Stephen Bilkis

The Facts:

On 18 April 1975, in the County of Queens, a person was assaulted and robbed. Among the items taken were a 1970 Cadillac, a wallet and four blank checks. Thereafter, that person’s signature was forged on two of the checks which bore the date 18 April 1975 and which were presented for payment. On 3 May 1975, defendant was apprehended in the County of Nassau while operating the said stolen vehicle. A New York Criminal Lawyer said as a result, defendant was indicted in Queens County for Robbery in the First Degree and Assault in the Second Degree. Defendant was thereafter convicted on both charges. In Nassau County, defendant was charged with Criminal Possession of the Forged Checks (Second Degree, 2 counts) and Criminal Possession of the Cadillac (First Degree) together with certain traffic offenses not hereto relevant.

Consequently, defendant, by his attorney, applies to the Court for an Order dismissing the indictment which accuses him of Criminal Possession of a Forged Instrument in the Second Degree (2 counts) and dismissing the first count of indictment which accuses him of Criminal Possession of Stolen Property in the First Degree. A New York Criminal Lawyer said the defendant contends that the prosecution of these charges would constitute a second prosecution in violation of CPL 40.20 and Penal Law 165.60.