Criminal Procedure

Published on: July 21, 2013

The Sixth Amendment to the United States Constitution

by Stephen Bilkis

A Nassau Criminal Lawyer said that, this case is a criminal proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the Presiding Justice, the Clerk, and the Deputy Clerks of the Supreme Court, Appellate Division, Second Judicial Department, to accept for filing an application for leave to appeal from an order of the County Court, Nassau County, dated October 9, 2009, in an underlying criminal action, pending under Nassau County Indictment No. 74670/90, and to accept for filing an application for leave to appeal from an order of the Supreme Court, Queens County, dated September 23, 2009, in an underlying criminal action, pending under Queens County Indictment Nos. 6608/90 and 6609/ 90, applications by the petitioner for leave to appeal to this Court from those orders, and application by the petitioner for poor person relief. A Nassau Order of protection Lawyer said that, also a proceeding pursuant to CPLR article 78, inter alia, in the nature of a writ of prohibition to prohibit the retrial of the petitioner on Nassau County Indictment No. 3935/88, on the ground that a retrial of the subject indictment would subject him to double jeopardy.

A Nassau Order of Protection Lawyer said that, in a decision and order on application dated April 2, 2010, a Justice of this Court denied the petitioner’s application pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from the order of the County Court, Nassau County, in an underlying criminal action, pending under Nassau County Indictment No. 74670/90. In a decision and order on application dated April 8, 2010, a Justice of this Court denied the petitioner’s application pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from the order of the Supreme Court, Queens County, in an underlying criminal action also pending under Queens County Indictment Nos. 6608/90 and 6609/90. Since this Court accepted for filing the petitioner’s applications for leave to appeal to this Court from those two orders, the proceeding to compel acceptance of those filings has been rendered academic and, therefore, and must be dismissed. Moreover, since applications for leave to appeal to this Court from those orders have already been made and determined, the petitioner’s current applications for the same relief also must be dismissed. Robbery was not charged and neither was domestic violence.

The issue in this case is whether the Court should accept for filing the application for leave to appeal filed by the defendant in his criminal indictments.

Published on: July 19, 2013

Two New York State Police Troopers observed the defendant

by Stephen Bilkis

The defendant pleaded guilty to conspiracy in the fifth degree in connection with his purchase of cocaine from another individual. At sentencing, the court suspended the defendant’s driver’s license for a period of six months, in accordance with the Vehicle and Traffic Law because the defendant’s conviction was drug-related.

On appeal, the defendant argues that the court improperly suspended his driver’s license because Vehicle and Traffic Law provides for such suspensions where one is convicted of the crimes defined in article 220 or 221 of the Penal Law, and he was not convicted under either article.

At the outset, it is not the Penal Law, but the Vehicle and Traffic Law which requires construction in this case. It is well settled that suspension or revocation of a driver’s license is a civil, not a criminal, sanction. Thus, the statute at issue is construed so as to give it a sensible and practical over-all construction, which is consistent with and furthers its scheme and purpose and which harmonizes all its interlocking provisions.

Published on: July 13, 2013

Juvenile offenders not charged as adults

by Stephen Bilkis

A criminal proceeding was scheduled for trial charging a lawyer with the crime of criminal solicitation in the fourth degree and attempted tampering with a witness in the third degree. The allegation asserts that the attorney and his client attempted to prevent the witness from testifying against the offender by engaging another person to threaten the witness who was charged with domestic violence..

Attached to the information is a sworn supporting statement from the person who threatens the witness. Subsequently, the complainant submitted an application of an order directing the unsealing of the files and records of the county’s criminal courts, the county’s district attorney’s office and the county’s police department.

The complainant seeks the unsealing of an indictment which pertains to the youthful offender adjudication of a young man who is allegedly represented by the lawyer. Later, the complainant had made a representation to the court. They contend that they are entitled to the records containing the information sought. Sex was not an issue.

Published on: July 12, 2013

Grand Jury report was sealed

by Stephen Bilkis

On January 27, 1982, the County Court impaneled Grand Jury Panel 3 for the Second Term of 1982. It was created to investigate allegations concerning corrupt acts and criminal conduct involving governmental operations, public officials, and government employees and their associates. The Panel was discharged on October 29, 1983.

After hearing and examining the evidence concerning the misconduct, nonfeasance and neglect in public office by a particular public servant, the Grand Jury took action by voting to submit to the Court a report. The report recommended removal or disciplinary action against the identified public servant, as provided in Criminal Procedure Law. The Grand Jury did not indict the public servant named in the report, nor did it dismiss a charge before it. At the conclusion of his presentation, the Assistant District Attorney concluded the evidence was insufficient to ask the Grand Jury to consider criminal charges. None were therefore considered.

The Court ordered that the report submitted be filed as a public record. Pursuant to Criminal Procedure Law, the public servant named in the report appealed to the Appellate Division, Second Department. By order, the Appellate Division ordered the Grand Jury report sealed. The Court stated that, although the report was supported by a preponderance of the credible and legally admissible evidence presented to the Grand Jury, the legal instructions given by the Assistant District Attorney were inadequate, and the Assistant District Attorney failed to follow proper procedure with respect to the issuance of a report by the Grand Jury. Specifically, the Court held that, providing the Grand Jury with copies of the CPL (Criminal Procedure Law) article 190 pursuant to CPL is not sufficient where, as here, they (the Grand Jurors) were never given any instruction on the standard of proof to be applied in weighing the evidence. Further, an Assistant District Attorney recommended to the Grand Jury that they vote to have his office prepare a report without explaining to them their options under the statute. The proper procedure, not followed here, requires that before any report is prepared, the Grand Jury vote upon whether or not a report should be issued at all, and if so, what type of report should be prepared. Neither a weapon or sex was involved.

Published on: July 10, 2013

Mistrial is denied

by Stephen Bilkis

A Nassau Criminal Lawyer said that, this case is a criminal proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the Presiding Justice, the Clerk, and the Deputy Clerks of the Supreme Court, Appellate Division, Second Judicial Department, to accept for filing an application for leave to appeal from an order of the County Court, Nassau County, dated October 9, 2009, in an underlying criminal action, pending under Nassau County Indictment No. 74670/90, and to accept for filing an application for leave to appeal from an order of the Supreme Court, Queens County, dated September 23, 2009, in an underlying criminal action, pending under Queens County Indictment Nos. 6608/90 and 6609/ 90, applications by the petitioner for leave to appeal to this Court from those orders, and application by the petitioner for poor person relief. A Nassau Order of protection Lawyer said that, also a proceeding pursuant to CPLR article 78, inter alia, in the nature of a writ of prohibition to prohibit the retrial of the petitioner on Nassau County Indictment No. 3935/88, on the ground that a retrial of the subject indictment would subject him to double jeopardy.

Weapons were not found.

A Nassau Order of Protection Lawyer said that, in a decision and order on application dated April 2, 2010, a Justice of this Court denied the petitioner’s application pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from the order of the County Court, Nassau County, in an underlying criminal action, pending under Nassau County Indictment No. 74670/90. In a decision and order on application dated April 8, 2010, a Justice of this Court denied the petitioner’s application pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from the order of the Supreme Court, Queens County, in an underlying criminal action also pending under Queens County Indictment Nos. 6608/90 and 6609/90. Since this Court accepted for filing the petitioner’s applications for leave to appeal to this Court from those two orders, the proceeding to compel acceptance of those filings has been rendered academic and, therefore, and must be dismissed. Moreover, since applications for leave to appeal to this Court from those orders have already been made and determined, the petitioner’s current applications for the same relief also must be dismissed. Sex was not involved.

Published on: April 24, 2013

Court Discusses Elements of Grand Larceny

by Stephen Bilkis

A man knocked on an apartment door. He claimed to be delivering something for the resident in the apartment. He asked the resident for some personal identification. A New York Criminal Lawyer said the resident of the apartment left the apartment door open and left the man at the door while she went inside the apartment to get her ID. With the apartment door left open, a television set can be seen which was put on a stand situated very near the open apartment door. On the floor near the television, there were sweaters scattered all over. The man took the TV and the sweaters on the floor.

A Westchester County Criminal Lawyer said the man was seen by another delivery man who was making a delivery in a nearby apartment at the same time. He saw the bogus delivery man go inside the apartment and leave holding the TV set and the sweaters. He also saw the bogus delivery man leave the apartment and ride a bike while carrying the TV set and the sweaters. The delivery man followed the bogus delivery man and saw that at the nearest corner, the bogus delivery man dropped the TV and the sweaters. He left them there on the street where they fell. And he rode the bike all the way to a nearby restaurant. At the restaurant premises, the bogus delivery man left the bike. He went to the parking area of the restaurant and rode in a car. The delivery man wrote down the license plate of the bogus delivery man’s car. When a police cruiser came by, the delivery man told them his story and gave them the license plate of the bogus delivery man. He also led them to the spot where the TV and the sweaters were dropped.

The bogus delivery man was later arrested. He was charged with two crimes in one information: he was charged with breaking and entering with intent to commit grand larceny and grand larceny. The bogus delivery man moved for a trial without a jury. The man was convicted with breaking and entering with intent to commit grand larceny but he was convicted only of petit larceny and not grand larceny because the prosecution failed to prove that the properties taken were valued beyond $100.

Published on: April 24, 2013

Court Looks at Elements of Burglary vs. Petit Larceny

by Stephen Bilkis

A man entered a home in Dade County, Florida. He did this in the middle of the night without the knowledge and consent of the two people who lived in the premises, a brother and a sister. The man ransacked the house and took away with him a color television set. He was later apprehended by the police.

A New York Criminal Lawyer said the charges of larceny and burglary were brought against him. The larceny charge was brought for the taking of the television while the charge of burglary was charged for breaking and entering into the house owned by another person for the purpose of committing a crime.

The criminal information filed against him alleged that sometime on May 9, 1976 in Dade County, the man unlawfully entered the house owned by VA, the owner and custodian of the home with intent to commit the offense of petit larceny.

Published on: April 23, 2013

Appellants Claim Jury Instruction Harmed Their Case

by Stephen Bilkis

The Facts of the Case:

A New York Criminal Lawyer said petitioners were charged with breaking and entering with intent to commit a felony, to-wit: grand larceny. At a jury trial, petitioners requested an instruction on breaking and entering with intent to commit a misdemeanor, petit larceny, but this request was denied. Thereafter, the jury found the petitioners guilty as charged and the criminal court sentenced each of them to fifteen (15) years. On appeal, the District Court of Appeal, Second District, affirmed the guilty verdict holding that the proof of guilt was overwhelming and that any error committed by the court’s refusal of the requested instruction on the alleged lesser offense was harmless.

The case is now before the court for certiorari.

Published on: April 22, 2013

Defendant Moves to Supress Evidence in Vehicular Manslaughter Case

by Stephen Bilkis

The Facts of the Case:

On around 18 to 19 of October 2007, at around midnight, the defendant went to a nightclub with his girlfriend “A”, a friend of his girlfriend “B”, and another individual “C”. A New York Criminal Lawyer said after drinking alcohol at the nightclub, the defendant and “C” left and went to a nearby parking lot. According to “B”, defendant did not appear intoxicated at that time; that defendant stated in the parking lot that he lost his shit, presumably referring to drugs, and the defendant became upset. The defendant then went into the trunk of his car and searched for something. Thereafter, the defendant began arguing with his girlfriend. At approximately 3:15 A.M., several witnesses heard gunshots, but no one reported having seen the defendant fire a gun. The defendant then angrily ordered B to leave with his girlfriend. B did and drove the defendant’s girlfriend home. The defendant and C then entered the defendant’s vehicle, with the defendant driving. When police officers arrived at the parking lot only minutes later, at about 3:20 A.M., the defendant had left, and the officers recovered several 9–millimeter shell casings in the parking lot. At approximately 3:30 A.M., the defendant’s vehicle was seen traveling west in the eastbound lanes of the Southern State Parkway at a speed of 70 to 75 miles per hour. According to numerous witnesses, the defendant’s vehicle traveled in the wrong direction, from about exit 19 to exit 13, a distance of approximately five miles. According to a witness, the defendant was driving directly at him while changing lanes; that he had to immediately pull his vehicle onto the shoulder to avoid a collision; that the defendant continued driving the wrong way; that he observed the other vehicles on the parkway split apart in order to get away from the defendant; that the defendant was steadily going, not braking.

Another witness, a Police Sergeant, was also driving in the proper direction in the left eastbound lane of the parkway. According to the Sergeant, as he passed exit 14, he observed the defendant’s vehicle driving towards him at a high rate of speed which caused him to violently turn his steering wheel to the right to avoid a collision; that the defendant’s car came within inches of the Sergeant’s vehicle; that the defendant made absolutely no effort to get out of the way. Near exit 13, the defendant’s vehicle, without ever having slowed down, collided with the victim’s vehicle, killing the victim instantly and incinerating the victim’s vehicle. When emergency services and police arrived on the scene and attempted to remove the defendant from his damaged vehicle, the defendant was agitated and his breath emitted a strong odor of alcohol. The police then arrested defendant, and following his arrest, a blood sample taken from him at 4:49 A.M., just over an hour after the accident, indicated that his blood alcohol content (hereinafter BAC) was 0.19%. When the defendant was arrested, he was then removed from his vehicle, and the police thereafter began conducting an inventory search of the vehicle. The discovery of several 9–millimeter rounds in the trunk, however, transformed the search from inventory to investigatory, during which the police recovered a 9–millimeter semiautomatic pistol, what was later determined to be .395 grams of cocaine beneath the front passenger seat, and 41 rounds of 9–millimeter bullets contained in a partially loaded magazine and a box in the trunk. The gun recovered from the defendant’s vehicle matched the shell casings found in the parking lot near the nightclub.

Published on: April 21, 2013

marijuana

by Stephen Bilkis

The defendant is appealing a jury conviction that charged him with the crime of carrying a firearm during and in relation to a drug trafficking crime and for possession of a weapon and ammunition by a convicted felon.

Case Background

In July, law officers executed a search warrant on the defendant’s residence. The officers testified that the defendant arrived at his home around 9:45 p.m. and got out of his vehicle and went into the house. Not long afterwards another car pulled up and the defendant came out of the house to talk to the driver of the vehicle. After the driver left the officers executed the search warrant of the property.