Criminal Procedure

Published on: August 20, 2012

Plaintiff Seeks Damages Against Landlord for Assault

by Stephen Bilkis

This involves a case where the Supreme Court Appellate division held that conceivability is not equivalent to foreseebility. The Court herein granted defendant’s motion for summary judgment dismissing the complaint.

Plaintiff was a tenant in a building located at 584 Academy Street in Manhattan, owned by defendant holding company and managed by defendant development company. In the early afternoon of February 26, 2002, plaintiff entered the building through the lone entrance available to the tenants. A man whom plaintiff did not recognize entered the building immediately after her. The man walked ahead of plaintiff up a staircase, which plaintiff was using to reach her unit on the second floor. A New York Criminal Lawyer said that as plaintiff opened the door to her apartment, the man, who had continued up the staircase when plaintiff walked from the staircase to her unit, ran down the staircase and pushed plaintiff into the apartment. The man then sexually assaulted plaintiff at gunpoint.

Plaintiff commenced this action to recover damages for personal injuries, claiming that defendants failed to provide adequate security for the building. Specifically, plaintiff’s theory of liability is that defendants failed to maintain a working lock on the door to the tenants’ entrance, which failure allowed the assailant to gain entry to the building and assault plaintiff.

Published on: August 19, 2012

Defendant Requests Re-sentencing

by Stephen Bilkis

A woman was convicted after a jury trial of murder. Upon the conviction, the woman was sentenced to a term of life imprisonment with a mandatory minimum period of seventeen years. She was also convicted of attempted robbery and sentenced to an indeterminate term five years imprisonment with a mandatory minimum period of two and one-half years to run concurrent with the life sentence.

The woman moves personally without a notice of motion or sworn affidavit, for re-sentencing to a determinate term of imprisonment. She did, however, verify that she served the District Attorney. Notwithstanding such service, the District Attorney failed to file any opposition. Consequently, on February 4, 2010, the court deemed the woman’s motion submitted on default.

A New York Criminal Lawyer said irrespective of the District Attorney’s default, the woman fails to provide any legal basis upon which the court may grant the relief requested. While she refers to the recently passed laws that may allow people who are serving life sentences to be considered to be re-sentenced to an alternate determinate sentence, she fails to identify any legal basis in support of her application. Indeed, it appears to the court that her claim is predicated on having been denied parole, stating that he has been denied parole release based solely for her crime, which will never change. It is served above and beyond the minimum term on both indictments and the maximum on one that she is not asking for a reduction that will minimize the responsibility to accept the punishment of her crime, however, the past cannot be change and to be denied release solely for her offense, which will not change is illogical and excessive. The woman believes that she is eligible to file an application under the standards of law and respectfully that she be re-sentenced to a determinate term of imprisonment.

Published on: August 19, 2012

Court Discusses Crime of Conspiracy

by Stephen Bilkis

On the morning of December 15, 1971 two men and a woman were observed entering the New York residence of the husband and his wife carrying empty shopping bags and a collapsed valise. When they departed, the three left with their once empty receptacles, filled. They were then followed to different distribution points where they were arrested. Searches conducted incident to the arrests revealed that they each had over one pound of heroin possession. A subsequent search of the couple’s residence produced large amounts of narcotics, money, weapons and drug packaging materials.

A New York Criminal Lawyer said on December 28, 1971 the three were indicted by the Bronx County Grand Jury which, by five indictments, charged the three and the wife with criminal law violation through crack possession. The indictments also charged one of the three complainants with two counts of attempted murder, two counts of reckless endangerment and possession of a weapon; and the complainant couple with two counts each of possession of weapon and criminally using drug paraphernalia.

Thereafter, in November, 1972 the complainants and 14 others were indicted by a Federal Grand Jury for conspiring to distribute and possess with the intent to distribute narcotic drugs. A New York Criminal Lawyer said the indictment set forth 18 overt acts that the complainants allegedly committed in furtherance of the conspiracy, the last of which stated that the three together with the husband did distribute and possess with intent to distribute a total of eight and one-half (8 1/2) kilograms of heroin hydrochloride, and, in addition, did obtain $70,000 income and resources from prior heroin distributions.

Published on: August 18, 2012

Court Discusses Conspiracy Charge

by Stephen Bilkis

The two accused men, charged with the crimes of Criminal Sale of a Dangerous Drug and Conspiracy, move to dismiss the indictment on the grounds that the prosecution puts them in jeopardy again for crimes of which they already have been convicted in another jurisdiction. They contend, in short, that their prosecution in Nassau County of the crime of Conspiracy included therein acts which are alleged in this indictment and thus fall within the proscriptions of the Criminal Procedure Law which prohibit such a second prosecution. The Court ordered a hearing on the contentions of the accused men and the facts and circumstances of the issues as testified to at the hearing.

A New York Criminal Lawyer said the accused men with others met the undercover Police Officer who was accompanied by an informer at a restaurant owned by one of the accused in Queens County Restaurant. There was a discussion concerning the buying and selling of cocaine and the accused men quoted prices to the undercover detective. An agreement was made the next day to meet at the same place for the purchase of 1/8 of a kilo and at the subsequent meeting the accused delivered the 1/8 of a kilo to the officer and received from him the sum of $4,000 as a payment. Having established a basis for doing business, the accused men and undercover officer, entered into another deal at a Restaurant for the sale of a kilo for $32,000. The actual sale for the kilo was made in Nassau County.

Subsequently, the accused men were indicted in Queens County charged with the crime of Criminal Sale in the First Degree, involving the $4,000 sale and the conspiracy which led up to that substantive crime. They were also indicted by the Nassau County Grand Jury for crimes involving the $32,000 sale, Criminal Sale of a Controlled Substance, Criminal Possession of a Controlled Substance (drug possession) and Conspiracy.

Published on: August 18, 2012

Defendants Arrested for Narcotic Sales

by Stephen Bilkis

In May 1990, members of the narcotics teams arrested three men for street narcotics sales to undercover police officers. In each case, both the arrest and the evident conduct constituting the crimes was charged occurred entirely within the county and pursuant to an agreement between the district attorney and the special narcotics prosecutor, the criminal actions were commenced by the filing of felony complaints in court.

A New York Criminal Lawyer said that all the three men were arraigned and their cases adjourned for action by the special narcotics grand jury and/or possible disposition by way of waiver of indictment and the filing of superior court’s information. The counsel orally moved for dismissal of the felony complaints on the ground that the court had lacked of geographical authority as defined in law. With the concurrence of all the parties, the court reserved decision and set a schedule for the filing of written motions and memoranda of law.

While the court was waiting from the city of New York’s response, the prosecutor presented the two men’s matters to a special narcotics grand jury. A true bill was voted with respect to each and the charges were filed. The indictments are currently pending in other special narcotics Supreme Court parts. One of the men has actually entered a guilty plea to a lesser included offense. Consequently, the city of New York moved to dismiss the charges against the other men because the laboratory report showed that the items sold contained no controlled substance. Apparently, the motion was granted by the court.

Published on: August 17, 2012

Plaintiff Claims They Were Denied Due Process

by Stephen Bilkis

In this case, Plaintiffs brought suit against the Defendants for: harassment, blackmailing and conspiring to boycott their classes and attempting to have them terminated from East Texas Police Academy (“ETPA”) in retaliation for their testimony in a case against another police officer involved in a shooting incident. Plaintiffs also claimed violations of: their rights to testify freely under 42 U.S.C. § 1985(2); their right to freedom of speech under the First and Fourteenth Amendment; their right to due process under the Fourteenth Amendment; and tortious interference with business relations. A New York Criminal Lawyer said the plaintiffs were instructors at the ETPA, in Kilgore, Texas, which provides basic and advanced training for law enforcement officers in the greater East Texas area. Defendants are the police chiefs or sheriffs from seven cities and counties within the greater East Texas area and who possess final authority over the training of the officers employed by their respective agencies.

Before the fall of 1998, Defendants enrolled their officers in ETPA courses on a regular basis, including courses taught by the Plaintiffs. The defendants were not contractually bound to continue using either the ETPA’s services or the services of Plaintiffs in particular. In August 1998, Plaintiffs voluntarily testified as expert witnesses against a police sniper from Kerrville, Texas who fatally shot a teenager. The said police officer was not trained at the ETPA nor belongs to the police agencies headed by the Defendants. In the said case, Plaintiffs testified that the Kerrville police officer used excessive force and that the Kerrville police department failed to implement the proper policies necessary to direct the conduct of officers acting as snipers.

The said testimony irked the Defendants and threatened the ETPA that they will all stop engaging their services for officer training. One of them said that Plaintiffs testimony “is in direct conflict with the basic fundamentals and expectations that we have come to enjoy from Academy instructors.” It created “conflicts of interest” and violated principles of “cooperative responsibility.” A Suffolk County Criminal Lawyer said they believe that an unacceptable conflict of interest exists whenever a police instructor testifies against a police officer, regardless of location and regardless of whether the instructor had trained the officer. Such a conflict does not exist when an instructor testifies for police officers.

Published on: August 17, 2012

Petitioner Demands Evidentiary Hearing

by Stephen Bilkis

The petitioner was a Florida prisoner on death row, having been convicted of first degree murder. The district court granted a writ of habeas corpus setting aside his conviction and sentence. The United States Court of Appeals reversed the decision of district court. The issues involved are whether or not the petitioner received ineffective assistance of counsel and that the State violated the Brady rule.

An illicit love affair ensued between a man, a real estate broker with ties to Boston’s criminal underworld, and a woman, who was married to a wealthy citrus grower. A New York Criminal Lawyer said the man and the woman conspired to kill the wealthy husband by hiring petitioner as an assassin to murder husband. Unfortunately, the murder did not signal the beginning of a blissful life on the estate for the lovers. The man allegedly wanted more money and continue to harass the woman and her child. Terrified, the woman went to the authorities and implicated the man as the person behind her husband’s murder.

During the trial, the man discredited the woman as prosecution’s star witness. Trial proceedings were tainted with evidentiary irregularity leading to the unavailability of key witnesses. The man was discharged from prosecution in the crime of murder. The court then granted the petition to destroy certain physical evidence held for man’s prosecution.

Published on: August 16, 2012

Court Looks at Elements of Sexual Abuse

by Stephen Bilkis

The People of the State of New York are the plaintiffs in a case against the defendant Stan Miller. This case is being heard in front of the Criminal Court of the City of New York in Kings County. A New York Criminal Lawyer said the defendant in the case has been charged with attempted sexual abuse in the second degree, attempted sexual assault in the third degree, unlawful imprisonment in the second degree, harassment in the second degree, and endangering the welfare of a child. The defendant has moved to have the charges against him dismissed.

Case Facts

The complaint in this case comes from a thirteen year old girl. The defendant is a teacher at the child’s school. On the day that the incident occurred the defendant walked the child to his home. The child wanted to leave the defendant’s home and the defendant proceeded to block the doorway and would not let her leave. The child states that the defendant asked her for a kiss and she said no. She says that he moved his face into close proximity of hers and tried to kiss her. These actions caused the child to become alarmed and annoyed.

Published on: August 16, 2012

Defendant Previously Tried in Military Court

by Stephen Bilkis

This matter involves Harvey O. Booth and Lee Clary as the Judge of the Jefferson County Court as the respondents. A New York Criminal Lawyer said the appellant in the case is James T. King as the Jefferson County District Attorney. The other case involves the respondents Leslie Bridgewater and Lee Clary as the Judge of the Jefferson County Court and James T. King as the Jefferson County District Attorney as the appellant.

The District Attorney of Jefferson County is appealing two cases. He is seeking to overturn the grant of writs of prohibition that prevent his office from prosecuting serious crimes that were committed by two solders on military property. The soldiers were off duty at the time.

The petitioner soldiers were tried and convicted by a general court martial for identical conduct that they were indicted for in Jefferson County. A New York Criminal Lawyer said the issue in each of the cases is whether a military tribunal is considered a court with any jurisdiction in the United States. If a military tribunal is considered a court with jurisdiction than the double jeopardy protection laws of the state of New York would bar the successive prosecution of the issues in these cases.

Published on: August 15, 2012

Court Hears Motion for Dismissal

by Stephen Bilkis

This is a matter being heard in the Supreme Court of the State of New York, Appellate Division, and Fourth Judicial Department. A New York Criminal Lawyer said the case deals with the State of New York as the petitioner and respondent and Nushawn Williams, who is also known as Shyteek Johnson, as the respondent and appellant.

The respondent and appellant, Shyteek Johnson is appealing a decision made in the Supreme Court of Chautauqua County that denied the motion made by the respondent/appellant to dismiss the proceeding.

Case Background