Criminal Procedure

Published on: May 2, 2012

Defendant Contends He was Improperly Interrogated

by Stephen Bilkis

A man, in possession of a gun, accosted a registered nurse who was on her way home from working at a hospital. He assaulted the nurse who was severely injured. Seven months later, the man committed a similar crime but in the territorial jurisdiction of Queens County. In relation to the second assault he committed in Queens, the police arrested him.

A New York Criminal Lawyer said the arrest was effected while the man was in the apartment of his girlfriend. When the police arrested him, the man was handcuffed and was escorted from the building. While they were escorting him, the man and his girlfriend had a conversation. The girlfriend said that she could call an attorney for her boyfriend. The boyfriend agreed and gave his girlfriend a specific instruction to call his lawyer.

When the police reached the car, they read the man the Miranda warnings. The police detective asked the man if he understood his rights and he declared that he understood them. The police detective then asked if he was willing to talk to the detective even without his lawyer. The man agreed.

Published on: May 2, 2012

Alleged Shoplifting Defendant Claims False Imprisonment

by Stephen Bilkis

The plaintiffs and appellee in the case is Virdie L. Smith et al. The defendants and appellants of the case are the Brookshire Brothers Inc. et al. The case is being heard in the fifth circuit of the United States Court of Appeals.

The Appeal

A New York Criminal Lawyer said in the original case, Donnie McClure and Virdie L. Smith sought damages against the Brookshire Brothers Inc, Kenneth Sandel and Glen Nevill. The reason for the case was malicious prosecution, civil rights violations, and false imprisonment. This particular suit was started because of the actions taken be Brookshire Brothers employees who took action against the appellee suspecting them of being shoplifters. In the original trial court damages were awarded to the plaintiffs and the defendants are appealing this verdict.

Published on: May 1, 2012

Court Discusses Throwing Out Assault Charge

by Stephen Bilkis

A man was indicted for assault in the first degree and for criminal possession of a loaded firearm as a felony. The man was accused of having assaulted another man by aiming and discharging a loaded pistol at him, with an intent to kill the other individual. At the close of the case, the counsel of the man requested the trial court to charge the jury with respect to assault in the second and third degrees, in addition to assault in the first degree. The court denied the request as it was to charge assault in the third degree. The jury found that the man is guilty of the gun crime and of assault in the second degree.

The court agrees in affirmation as to the conviction for possession of the firearm, but opposes and votes to reverse the judgment insofar. A New York Criminal Lawyer said the judge giving the opinion that, under the circumstances of the case, the trial court committed reversible error in refusing the man’s request to charge assault in the third degree. The evidence tends to establish that the man and the victim of the assault, together with several other companions, who had been drinking in a bar for several hours prior to the incident. When the abovementioned bar closed for the night, the group proceeded across the street and commenced horsing around. The victim testified that he was pretty high at the time of the incident. The behavior engaged in were variously described as kidding around, carrying on, wrestling and grabbing each other, and rolling on the ground. There came a time when the man allegedly drew a pistol and fired it, wounding the victim. The record is barren of evidence which would tend to establish a motive or provocation for the assault. The testimony of the victim, his brother and several other companions is to the consequence that the man drew a pistol, aimed it at the victim and fired. The description of the assault by one of the companions differs materially from that of the others. One of the companions described the incident and stated that they were over there singing and cracking jokes when the man came and said a few words before the gun went off. The gun went off coming out from the man’s pocket. The witness further said that he had just seen the fire and he didn’t see the gun. Therefore, there can be no assurance for assault in the second degree because of the absent proof of the requisite intent. Although the testimony of the victim and the others, excluding one, is sufficient to support a conviction for assault in the second degree, the other companion’s testimony tends to establish that the gun went off accidentally as the man withdrew it from his pocket. The said testimony, coupled with the evidence that the group was intoxicated and the absence of evidence showing motive for the assault, would tend to negate the presence of the required intent. Under the said circumstances, the trial court should have charged the jury with respect to assault in the third degree, which requires no specific intent.

Based on records, it has been repeatedly written that if, upon any view of the facts, an offender could properly be found guilty of a lesser degree or an included crime then the trial judge must submit such lower offense. A Westchester County Criminal Lawyer does not matter how strongly the evidence points to guilt of the crime charged in the condemnation, or how unreasonable it would be, as a court may appraise the weight of the evidence, to find not guilty of that crime and convict of the less serious crime.

Published on: May 1, 2012

Court Reviews Search and Seisure Proceedures in Possible Murder Case

by Stephen Bilkis

The village police received a 911 call from a teenager asking for assistance because he thought his mother had died. A police officer was dispatched to the home of the teenager and he arrived at 9:30am. A New York Criminal Lawyer said the teen-aged boy let the police officer in and brought him to his mother’s bedroom where he found the mother lying in a pool of her own blood. After the police officer was sure that the mother had no pulse, the police officer called for the detectives of the police department. The police officer also called the dead woman’s husband at his dental clinic.

Other police officers arrived at 10am. The police detectives arrived at 10.40 am and the medical examiners came at 11:25am. The husband of the dead woman, the dentist came home at 12 noon.

When the dentist arrived the police detective asked him questions. He was asked if he had any guns in the house and the dentist said no. He said he had not fired a gun since 1954 when he was in the armed forces.

Published on: May 1, 2012

Court Discusses Indeterminate Sentencing

by Stephen Bilkis

In New York, prior to January 13, 2005, it was common for people convicted of Class B felony drug crimes to be incarcerated with indeterminate sentences. A New York Criminal Lawyer said the trend at the time was to be tough on drug offenders by putting them in prison with no expectation of a final release date. In January of 2005, new trends and research into the problems presented by indeterminate sentences, caused New York lawmakers to rethink their policy. Class B felony drug crime offenders stopped getting indeterminate sentences. Since, the prisons were overrun with Class B felony drug crime offenders who had indeterminate sentences, CPL 440.46 was created to alleviate the problem. It states that any person who has been convicted of a Class B felony drug crime under article 220 of the Penal Law that was committed before January 13, 2005 might be eligible for resentencing under the new sentencing guidelines that did not include indeterminate sentences. They must have a maximum of more than three years to be eligible. The intent originally was to reduce the number of drug offenders on the streets. The problem with indeterminate sentences is that offenders behave worse when they do not have the hope of a definite end. The large number of drug offenders that were incarcerated was putting a strain on the system and taking space that was needed to house violent offenders. Sometimes, political notions of how to combat crime cause more problems than they solve. Indeterminate sentencing was one of those notions. The sentences were so severe that they were out of sync with the rest of the sentencing guidelines for other offences. Often, drug offenders received harsher sentences than violent offenders. There were other problems with the idea of indeterminate sentences that must be addressed by the New York legal system. A New York Sex Crimes Lawyer said one way is to go back through all of the cases where offenders are facing more than three years of an indeterminate sentence, and allow them to apply for resentencing under the new guidelines. In most cases, approval for resentencing means release into a drug treatment program and probation. There are exceptions to these resentencing guidelines. If a person was convicted in the ten years preceding this conviction with any violent felony offense described in section 70.02 of the penal law or any offense for which a merit time allowance is not available, then they are not eligible for resentencing under the new guidelines.

This ten-year period is figured from the date of the person’s resentencing motion and not from the date that he committed the present drug crime. A New York Criminal Lawyer said in one case, a man applied for resentencing under the new guidelines in October 2009. He had been convicted in March of 1984 for manslaughter in the first degree. Manslaughter in the first degree is a class B violent felony, which would otherwise make him ineligible for resentencing. He was also convicted in July of 1995 with manslaughter in the second degree which is an offense in which merit time allowance is not allowed. However, because both of these convictions occurred prior to the ten-year period from 2009, they do not disqualify him from resentencing pursuant to CPL 440.46. Under the ten-year look back policy, this offender’s history before 1999 cannot be considered in order to disqualify him from obtaining resentencing to remove his indeterminate sentence. Additionally, he was sentenced to an indeterminate sentence that would last more than three years which does qualify him for resentencing under the new guidelines. This matter was remitted back to Queens County Supreme Court for new proceedings and a new determination of the motion. This means that the inmate will qualify for resentencing that will put his sentence in line with the sentences that drug crime offenders are presently getting.

A New York Drug Possession Lawyer said there are mixed arguments about resentencing drug offenders, but there is simply not enough room in the prisons to house everyone who has been convicted of a drug offense. It is important that the people who have been arrested for drug offenses, and given indeterminate sentences, contact a Queens Drug Lawyer. A Queens Criminal Lawyer can represent your interests and help you regain your freedom.

Published on: May 1, 2012

Court Discusses Jurisdiction in Shoplifting and Drug Charges

by Stephen Bilkis

A New York Criminal Lawyer said the appellant of this case is the State of Florida. The state of Florida is being represented by the attorney general, Robert L. Shevin, and the assistant attorney general, Richard W. Prospect. The appellee in the case is Gregory Dean Bradley. He is being represented by public defender, Michael J. Minerva, and assistant public defender, Janice G. Scott.

The case is being heard in the first district of the District Court of Appeal in the state of Florida. The judge overseeing the case is Boyer.

Appeal

Published on: April 30, 2012

Court Discusses Concurrent Sentencing

by Stephen Bilkis

A man was indicted on three counts of robbery in the first degree, one count of attempted robbery in the first degree, five counts of grand larceny in the first degree, one count of assault in the first degree, one count of unlawfully carrying a loaded pistol concealed upon the person, three counts of assault in the second degree, and petit larceny.

A New York Criminal Lawyer said the aforesaid man pleaded guilty to attempted robbery in the first degree (13th count), assault in the first degree (14th count), and unlawfully carrying a loaded pistol concealed upon the person (16th count).

On the date of sentencing, the District Attorney of Nassau County filed an Information charging that the man had previously been convicted of the felony of attempted rape in the second degree, which was admitted to be true.

Published on: April 30, 2012

Court Determines Admissibility of Evidence

by Stephen Bilkis

A patrolman was on patrol one evening when he was ordered to investigate a complaint regarding abandoned automobiles in the vicinity of 24 Max Avenue, Hicksville, New York. A New York Criminal Lawyer the building located at that address contains two factory establishments and an apartment on the first floor.

In the course of the investigation, the patrolman knocked on the front door of the apartment at about 9:15 that evening. In response he heard the voice of a very young child whom he later ascertained to be two years of age. He asked through the door if child’s father or mother is at home. The child answered in the negative. He then again asked whether anyone else was home and again the child replied in the negative. The door was not opened. It was locked. He peered through the curtained window and saw the lights on and a television set in operation. At this point, the police officer made a radio call for assistance from the Juvenile Aid Bureau of the Nassau County Police Department. Following the call, a detective of the Juvenile Aid Bureau along with a Sergeant and another Patrolman, operating a police ambulance, convened at the premises. They all approached the apartment. The Patrolman knocked on the door, and on this occasion, a different young voice answered. The patrolman requested the child to open the door. The door was opened and he was met by a five year old female. Thereafter, the police officer questioned the little girl as to the whereabouts of her parents. She told him that there was no one else in the apartment besides the two children. The officer ascertained at that time that the young girl was five years old, and that the child who first answered his knocking was a little boy two years of age.

In the course of being questioned the young girl admired the service revolver belonging to the patrolman and said, “defendant-man has a gun like that”. The girl then turned around and walked over to a cabinet and said, “See, here it is”. She had picked a loaded .38 caliber Smith & Wesson revolver out of the top drawer and the police officers immediately took the gun from her before anything happened. The police asked her, “Has defendant-man any more guns?”, and she replied, “Yes, he has a lot of guns and he also has pot and speed”. She then went back to the same drawer and picked out a plastic bag which contained marijuana and also gave it to the police officers.

Published on: April 30, 2012

Defendant Brings Motion to Supress Idenification Testimony

by Stephen Bilkis

This is an appeal of a man from his judgment in the Supreme Court convicting him of criminal possession of a weapon in the second and third degree, upon a jury verdict. A New York Criminal Lawyer said the appeal brings up for review the denial of the accused man’s motion which was to suppress identification testimony and upon an order the court that reversed the above mentioned decision.

Contrary to the accused man’s contention, the pretrial lineup identification was not improperly suggestive. The photographs taken of the lineup reflect that the slight differences in skin tone between the man and the fillers were not so apparent as to orient the viewer toward the man as the offender of the crimes charged. A New York Criminal Lawyer said that based on records, the skin tone is only one of the factors to be considered in deciding reasonable similarity and differences in skin tone alone will not render a lineup improperly suggestive. A the court does not find that the presence of a small tattoo on the side of the man’s face rendered the lineup improperly suggestive.

The court found that improper remarks by the prosecutor during summation deprived the man of a fair trial. The prosecutor improperly vouched for a witness and implied that the witness faced retribution from the man when he stated that the witness testified not knowing what the consequence would be for herself and her family. A said that based on records, a prosecutor may not strengthen the credibility of a witness by making himself or herself unsworn witness and supporting his case by his own veracity and position.

Published on: April 30, 2012

Court Discusses Plain View Doctrine

by Stephen Bilkis

Computers are playing an ever increasing role in crime and criminal activity. In some cases, case law is still in a state of flux in determining how certain searches are affected by this technology. A New York Criminal Lawyer said the question of novel issues in court are more common because of this. In one such case, the question was raised of whether a warrant authorizing a search of text files that are on a computer for documentary evidence pertaining to one particular crime, authorizes a search of image files on the same computer that contain evidence of a different crime. In cases like this, the question of law relates to the plain view doctrine.

The plain view doctrine states that anything that an officer can see in plain view while he or she is legally in a location, can be seized without a warrant. The suspect can then be charged with whatever crime the item suggests they are involved in. There are many cases that have established the case law referring to the plain view doctrine. Recently, the plain view doctrine has taken on an entirely different arena. The plain view doctrine can now be applied to computer files that are opened pursuant to a search of the computer. In other words, in the old days, the plain view doctrine applied to anything that an officer could see that was physically in plain view. For instance, a New York Criminal Lawyer said if the officer was inside a house relative to a domestic violence call, and observed a marijuana plant growing in the room, he could seize it and charge the person with possession of marijuana. The reason that he could seize it without a warrant is that he was inside the house legally handling a call for service and observed the plant in plain view. Now, most of us do not think about the files in a computer being in plain view, but if you think about them in the following fashion, it can be understood.

If an officer is searching a file cabinet located in a home for child pornography, under a search warrant that entitles him to look for evidence of the crime of child pornography, he is looking through the file cabinet legally. If he then sees a file that references drug crime, he can seize that file and make the appropriate charges, because he was legally in the file cabinet under the search warrant when he observed the additional file in plain view.