Criminal Procedure

Published on: July 23, 2012

Issue Revolves Around Whether Defendants Knew They Were in Possession of a Forged Instrument

by Stephen Bilkis

The Facts

On 2 July 1982, defendant presented a check in the amount of $254.78 to a cashier employed by a Market to pay for a $30.06 bill for groceries. A New York Criminal Lawyer said the check was made payable to person-one and drawn against an account maintained by a corporation.

The check was presented with the Market’s customer check cashing card which had been issued to person-one. At the time the check was presented to the cashier, it bore the signature of person-two, as maker on behalf of the corporation, and was indorsed on the reverse side of the check in the name of person-one. In order to receive cash to return to defendant, the cashier went to the service counter where she handed the check and the check cashing card to the head cashier. The head cashier recognized the check as one for which an alert had been received by the store a few days earlier, thus, he instructed the cashier to detain defendant, and called the police and the assistant store manager. Thereafter, defendant indicated to the assistant store manager that the check was his. (Defendant repeatedly denied that this conversation with the assistant store manager ever occurred.) While the assistant store manager attempted to detain defendant, defendant left the store. The assistant store manager followed defendant out of the store and identified him to the police.

Published on: July 23, 2012

Defendant Appeals Sentencing

by Stephen Bilkis

The Facts:

Defendant was employed as an assistant comptroller of a Hospital. Allegedly, a New York Criminal Lawyer said the defendant was depositing checks payable to his employer in his own checking account. Thus, he was charged with five counts of grand larceny in the second degree. An audit by the Hospital revealed, and defendant admitted, that during the period from 1967 to 1972, such defalcations amounted to approximately $68,000.

According to defendant’s memorandum, and not controverted by the prosecution, the defendant was advised between his arraignment on 27 January 1976, and his plea of guilty on 24 February 1976, that if he made satisfactory restitution to his employer’s insurance carrier he would be allowed to plead guilty to a misdemeanor in satisfaction of the indictment.

Published on: July 23, 2012

Court Decides jurisdiction Between State and Federal Court

by Stephen Bilkis

The plaintiff in the matter is the Greenview Trading Company. The defendants in the matter are Hershman & Leicher, P.C., Harold M. Hershman, Indu Craft, PLC of New York, Incorporated, and Richard Rottman. A New York Criminal Lawyer said the case is being heard in the Supreme Court in the state of New York located in New York County. The acting justice in the case is David B. Saxe.

The question before the court in this case is whether state courts have concurrent jurisdiction with federal courts to hear private civil actions regarding damages under the RICO act, or are these actions only within the federal domain.

Case Background

Published on: July 22, 2012

Court Defines Meaning of Criminal Enterprise

by Stephen Bilkis

This is a criminal case about the defendants who were indicted for forty one counts of Enterprise Corruption, Bribing a Labor Official, Bribe receiving by a Labor Official, and various Labor Law violations. A New York Criminal Lawyer said the defendants moved for inspection of the grand jury minutes and dismissal of the indictment, specifically for dismissal of Count One, (the Enterprise Corruption count) on various grounds.

The indictment was based on an investigation of the Carpenters’ Union. A Union Official was caught receiving a bribe and thereafter agreed to cooperate with the district attorney’s office. The prosecution contends that the defendants and the Union official were a group of persons engaged in a “criminal enterprise.” The defendants assisted each other to arrange or commit bribery from contractors to the Union Official to influence him to condone various violations of labor laws.

Count One charges the crime of Enterprise Corruption in violation of Article 460 of the Penal Law. Article 460, part of the New York “Organized Crime Control Act” (“OCCA”), was inspired by the federal “Racketeer Influenced and Corrupt Organizations” Act (RICO). 18 U.S.C. 1961 et seq. (Cf. Penal Law Article 460 at 552, McKinney’s Cons.Laws of N.Y., Book 39, ed. Donnino, Practice Commentaries).

Published on: July 22, 2012

Court Discusses Recidivism

by Stephen Bilkis

There are statutory laws in New York that provide for the prosecution of felony offenders. The New York Legislature designed these laws to provide stiffer penalties to offenders who have been charged with felony crimes in the past. A felony crime is any crime that the courts have deemed more serious. They are generally defined as any crime in which the penalty is more than one year of incarceration or more than a $2,000.00 fine. Felony theft offenses are offenses that involve high dollar theft. In most states, that is defined as any amount greater than $500.00. However, some states make it a felony to steal any amount over $250.00. If a person enters an automobile to steal something, it does not matter what the value is, or if the car is open or locked, the offense is a felony. Entering the building or dwelling house of another is also a felony. Stealing a car or joyriding in a car is a felony. Some assaults and batteries are considered felonies as well. Rape, sodomy, forcible sodomy, child molestation, child abuse, kidnapping, and numerous other offenses are also felonies.

The New York legislature wanted to send a message to anyone who was a repeat offender of felony crimes that each time the re-offend, or recidivate, the punishment for their crimes will also increase. Because, predicate felony convictions can make such a difference in the punishment that an offender receives, it is in an offender’s best interest to ensure that the prosecution is equipped with the correct information about their predicate offenses. Also, because each state determines felony convictions differently, it is possible that a person who has been charged with a felony in a state other than New York, may have that felony conviction used to determine that he is a felony recidivist.

The question of law arises when the felony crime that the offender was convicted of in another state, would not be considered a felony in the state of New York. One such offender was convicted of a predicate felony in the State of Maryland. He was later convicted of a felony in the state of New York. The prosecution determined that his sentence should be established under the second felony offender as it is written in Penal Law § 70.06(1)(b)(i). However, the offense that was a felony in the State of Maryland, had it been committed in the state of New York, would not have been considered a felony. The prosecution considered that the offense should be considered a predicate felony for the purposes of sentencing this offender. The offender disagrees. He contends that his conviction in Maryland, would not have been a felony if he had committed it in New York. Therefore, in New York, he has not committed a predicate felony offense.

Published on: July 22, 2012

Court Discusses Jury Selection

by Stephen Bilkis

When a person is charged with a felony crime, their case is sent to a Grand Jury in most states before the indictment is confirmed and sent to trial. The Grand Jury is a group of jurors who review the circumstances surrounding a case and determine with the guidance of the prosecutor from the District Attorney’s office if the elements of the crime have been met to proceed with a prosecution. At each stage of a criminal trial, there are requirements that must be met in order for the state to prosecute a person for the commission of a crime.

A New York Criminal Lawyer said these steps are important to protect the rights of every citizen in the United States. While it may seem to some that criminals are provided with too many rights and the ability to escape justice based on mistakes that are made by the prosecution team, it is important to remember that these safeguards are in place to enable a defense team to protect an innocent person from being incarcerated for a crime that they did not commit. At any stage of a criminal prosecution, the defendant is considered innocent until proven guilty. The job of the defense attorney is to protect the rights of all citizens by ensuring that the prosecution is not allowed to circumvent the safeguards that the legislature has placed in effect. Toward this end, many times defense attorneys notice improprieties in legal process that could have long reaching effects on all people.

One case of this type was heard in New York on March 17, 1975. In this case, the defense team noticed that the statutory requirements that were on the law books were not being followed by the Kings County New York court system. The process for the selection of grand jurors was detailed in the Judiciary Law § 609. The statute requires that the county clerk of each county must make an investigation of persons who are qualified to serve as trial jurors. The clerk will then require that the jurors provide legible fingerprints of both hands in order to ensure that they have not been convicted of any felony and certain misdemeanor charges in the state of New York. In this statute, the wording of the statute itself refers to the juror pool as applicants for the Grand Jury.

Published on: July 22, 2012

Court Decides Wire Fraud Matter

by Stephen Bilkis

The plaintiffs and appellants in the matter are B.B.C.F.D., S.A., etc., et al. The defendants and respondents in the case are Bank Julius Baer & Co. Ltd., et al., and Mina Persyko. The case is being heard in the First Department, Appellate Division of the Supreme Court of the State of New York.

The plaintiff in this matter is seeking to appeal a verdict that was made on the 7th of November, 2008. The previous order dismissed some of the claims that were made by the plaintiff and denied the motion from the plaintiff to recall and modify the complaint.

Case Background

Published on: July 21, 2012

Court Discusses Whistleblower Law

by Stephen Bilkis

A woman was employed from a not for profit agency. She worked as a coordinator of the employment services. A New York Criminal Lawyer said when she was still a probationary, she was terminated for alleged unsatisfactory job performance. Eleven months later, she initiated an action claiming that she was terminated because of her objection to and refusal to participate in the agency’s alleged fraudulent billing to the city for placements it never made. The agency finds employment for job applicants or places them in educational or training programs, for which it receives funding from the city.

The agency moved to dismiss the complaint on the ground that it failed to satisfy the two elements which are conditions precedent to the maintenance of an action under a whistleblower law. Based on records, the whistleblower law applies to relatively few situations and several proponents accepted to its narrow scope and urged broader application.

Consequently, the woman asserted that the agency’s billing practices constituted a grand larceny. The court then denied the motion and finding that the complaint states a valid reason for action under the labor law. Based on records, the part of the labor law provides that an employer shall not take any disciplinary personnel action against an employee because such employee does discloses or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety.

Published on: July 21, 2012

Court Discusses Probable Cause in Gun Crime

by Stephen Bilkis

The Facts:

On 11 November 1976 at about 8:00 p.m., a man entered a liquor store and asked for a pint of vodka. According to the clerk, the man was in the store for about two minutes, the man spoke with a slight Slavic, Polish or Russian accent, and he told the man he had nothing smaller in vodka than a fifth. At 8:30 p.m., the man returned and asked for a fifth of vodka, placing a $20 bill on the counter, but when the clerk obtained the vodka from a shelf at the back of the store and returned to the counter, a criminal law violation or a felony ensued; there was a handgun crime (possession of a weapon); the man pointed a gun at him and ordered him to lie down on the floor. The clerk was clearing the cash register as the man came in and had left the drawer slightly ajar, but had not removed the bills from it. Lying on the floor, he heard the noise of the spring clips in the register compartments, indicating to him that the money was being removed and the noise of the door to the store opening and closing. After the robber left, the clerk noted that the $190 that had been in the register was gone and that the vodka was still on the counter. The elapsed time from beginning to the end of the man’s second visit was four to five minutes.

Thereafter, the clerk called the police, and two patrolmen arrived within 10 to 15 minutes. The clerk told patrolman-one that the man was about 5 feet 9 inches with long hair roughly to his collar and light brown in color, with a long thin face and a slight mustache, that he was wearing a long leather-type jacket with a belt and baggy pants of navy blue, and that the gun was black, with a short barrel and short chamber. Patrolman-two sought witnesses outside and was advised by witness-one that she had seen a tan van, possibly rust color too, with two male occupants and bearing out-of-State plates circle the area approximately four times, that it had stopped about 50 yards from the liquor store, and thereafter proceeded south. Patrolman-one broadcast the description of the robber received from the clerk and patrolman-two added, as part of the same broadcast, the description he had received of the van. Patrolman-two then went back to witness-one and asked her whether the van was colored like a U-Haul van to which she responded that she believed so since there was writing on the side, that the driver of the van had asked for directions, and that he was a white male, with brown curly hair, a slight mustache and a thin face. Patrolman-two then made a second radio broadcast stating that the van could possibly have been a rental van, a U-Haul van. A Suffolk County Criminal Lawyer said his testimony does not reveal whether the second broadcast included the description of the driver of the van that he had received from witness-one.

Published on: July 19, 2012

Defendant Contends Identification Procedures by Police Incorrect

by Stephen Bilkis

Appeal from a judgment of the County Court rendered on January 6, 1981, upon a verdict convicting a man of the criminal act of rape in the first degree.

On the evening of July 4, 1979, at approximately 9:45 p. m., the female victim, aged 19, was walking up Baker Avenue in Cohoes, New York, en route to Cohoes Memorial Hospital. A man walked past her, turned and came up behind her, put his hands over her eyes and mouth and told her not to scream. A New York Criminal Lawyer said he then dragged her off the shoulder of the road into some bushes, punched her for a number of times, removed her clothing, and raped her.

When the man left, she donned her clothing and ran to the emergency room at the hospital where she received medical attention for her injuries and notified police. She thereafter gave a detailed description of her assailant to the police stating that he was a white male, age 20 to 25 years, about five feet nine inches tall, weighing 150 to 160 pounds, with shoulder length dirty blonde hair parted in the middle, wearing blue denim pants with a belt, a light pullover shirt, and sneakers. On September 25, 1979, she examined a series of six photographs at the Police Department and quickly identified a photograph of the accused as the man who had raped her. The man was indicted and his trial commenced. A New York Criminal Lawyer said he was positively identified in court by the victim as the man who raped her on July 4, 1979. His defense was mistaken identity and he contended, among other things, that at or around the time of the incident his hair was not even collar length. In addition, both the man and his wife testified that he was at home the entire night the criminal act was committed. Rebuttal witnesses for the Sate contradicted the testimony.