Criminal Procedure

Published on: February 15, 2012

Defendant Claims State Drug Statute Violates the Constitution

by Stephen Bilkis

On November 7, 1974, the Supreme Court of Monroe County, New York was called upon to hear the appeal of a drug possession conviction. According to a Brooklyn Criminal Lawyer, New York man was convicted after a jury trial of “Criminal Sale of a Controlled Substance in the First Degree based on a $5000.00 sale of cocaine, Criminal Possession of a Controlled Substance in the Fifth Degree, and Criminally Using Drug Paraphernalia in the Second Degree.” The appeal of the offender’s cocaine possession and sale case was based on the contention by the offender that the state’s statute was written in violation of the United States Constitution.

According to a New York Criminal Lawyer, the offender claims that the punishment imposed on Class A drug felons is cruel and unusual in violation of the Eighth and Fourteenth Amendments to the United States Constitution. The defendant argued that the sentences for drug offenses in New York are disproportionate to the offenses themselves. He sites in his behalf that other jurisdictions have lowered their mandated sentences when they were determined to be disproportionate. He contends that New York’s failure to do so makes them in violation of the United States Constitution.

Secondly, the defendant claims that the legislation is an arbitrary classification which denies equal protection of the laws because New York’s Class A drug offenses are punished more severely than Class A drug offenses in other jurisdictions.

Published on: February 15, 2012

Court Rules on Drug Crime Charges

by Stephen Bilkis

On April 20, 2007, an undercover police officer in a bar in Westhampton Beach in Suffolk County observed a suspect hand a knotted clear plastic bag containing a white powdery substance to another person and in return he was given cash money. They then separated and left the bar. Since the officer had witnessed the sale of the suspected narcotic, he had other officers stop the truck of the buyer and they recovered the drugs which proved under testing to be cocaine. The buyer was arrested for cocaine possession, according to a New York Drug Crime Lawyer.

The buyer then agreed to testify against the seller. Around two hours later, the seller was arrested. At the time of his arrest, he was not in possession of cocaine or any other drugs. The seller was arrested and charged with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. In return for his testimony against the seller, the buyer’s criminal charges were dismissed.

Prior to court, the prosecutor asked the judge if he could get permission to ask the buyer on the stand in court if he had purchased drugs from that seller in the past. He argued that since he had been a regular customer of the seller that it would clear up any questions as to the “absence of mistake.” In other words, it would ensure that the defense could not say that the buyer was mistaken about the identity of the person who had sold him the drugs, explained a Queens Drug Possession Lawyer. If the buyer knew the seller, there is no “absence of mistake.” The defense counsel opposed the motion. He claimed that the seller was not going to claim that the buyer had made a mistake about naming him, but that the buyer was simply lying and that he had never sold the man drugs in the first place.

Published on: February 14, 2012

Court Rules on Statute of Limitations Issue in Rape Case

by Stephen Bilkis

Rape cases are very sensitive and contain intricate in details. It requires a lot of evidence and consistency in the chain of events involved in the case. This goes the same for this case against Santos Quinto who was accused of raping a 19 year old who eventually got pregnant. The victim said that she first had sex with her full consent with her high school classmate in November 8, 2002. But after five years, when she was 19 years old already, she filed another police report that her step grandfather who is the accused mentioned was the one who raped her.

She explained to a New York Criminal Lawyer that it happened three times way back in 2002 but the problem arises with her decision to have not reported it when the crime was still fresh then. Even if this delay was questioned, such extension is still permitted in some circumstances especially for some sex crimes that are made to innocent children. A medical report that the victim went through revealed that she was pregnant.

According to the police and Suffolk County Criminal Lawyer who questioned her, her first statement stated that she had sex with her classmate and that she just said she was raped because she was afraid that her parents might get angry. At that time, the case came to a close. But by 2007, when she turned 19, she reported that it was her stepgrandfather who raped her for three consecutive times on different dates within the year of 2002. She recalled the story that it happened when she used to live with her grandma and cousins. She was abused three times inside of their own home.

Published on: February 14, 2012

Court decides Risk Assessment in Light of SORA

by Stephen Bilkis

James Taylor was 21 when he broke into a New Rochelle home on May 2, 1975. Assisted by three other men, Taylor entered the home of a suspected drug dealer with the intention of stealing money from the residents. Asleep in the home were the alleged drug dealer’s wife and three daughters, who were aged two, five and seven. According to a New York Criminal Lawyer, the four men, who were armed and wearing masks, demanded money from the wife and threatened to kill the children when she stated she had none. After she repeated her claim that there was no money to steal, the men threatened to kidnap the youngest daughter and hold her for ransom.

One of the men took the girls’ mother into a bathroom just off the master bedroom and closed the door. While holding a gun to her head he told her he would kill her if she didn’t reveal where they hid their money. She was then tied, bound and locked in a closet. When she escaped, the men were gone, along with her two-year-old daughter. She called police, who arrived on the scene. An officer noticed a blue Datsun in the area, which was occupied by Taylor, another man and a little girl. Police attempted to stop the vehicle, which lead to a high-speed chase. Finally, the car collided with a light pole, allowing police to rescue the child and apprehend Mr. Taylor and the other man.

At a non-jury trial, Mr. Taylor was convicted of first degree kidnapping, first degree robbery, criminal possession of a weapon in the third degree and first degree burglary. He was sentenced to 20 years to life. In November 1995, Mr. Taylor was paroled and as a condition of his release, required to register as a Level Three sex offender. At a redetermination hearing held in 2005, a Westchester County Court found that the Sex Offender Registration Act was unconstitutional in Mr. Taylor’s case and that he was not subject to its requirements. In April 2007, the court’s decision was reversed on appeal and a new hearing requested. The case was then forwarded to the Westchester County Supreme Court.

Published on: February 14, 2012

Court Rules on Probation Violation

by Stephen Bilkis

According to a New York Criminal Lawyer,Jason Garren plead guilty to numerous counts involving possession of child pornography. Specifically, his plea agreement included five counts of possessing a sexual performance by a child and four counts of promoting a sexual performance by a child. The Broome County Court sentenced him to six months in jail and a probationary term of ten years. He was also required to register as a sex offender upon his release.

After leaving jail, Mr. Garren failed to register as required by the Sex Offender Registration Act. He was then charged probation violation for failing to comply with this requirement. Mr. Garren plead guilty to the charge and as such his probation was revoked. He was then sentenced to a prison term of 1 1/3 to 4 years for each count of the original indictment, with the sentences ordered to run concurrently.

Mr. Garren appealed the conviction but his criminal defense attorney made an application to withdraw from the case. Specifically, he argued that no new issues existed to be raised on appeal. The appellate court, however, disagreed and found that Mr. Garren’s arguments had merit on at least one point in regard to the severity of the sentence he received. The appellate court granted the defense attorney’s request to withdraw and required new counsel to be assigned to the case.

Published on: February 14, 2012

Courts Rule on Mandatory Sentencing in Drug Case

by Stephen Bilkis

A 25-year old mother was indicted and convicted of a drug crime after trial of the sale of cocaine, which is considered a class A-I felony to an undercover police officer. According to sources, in a location known for rampant cocaine possession, the mother sold the undercover officer 214 vials of cocaine for $2,000 and promised to “take care of” him “the next time” he came. At the time of the sale she was 17 years old.

According to a New York Criminal Lawyer, under criminal laws, conviction of a class A-I felony carries a mandatory indeterminate prison sentence, the minimum of which is not less than 15 years and not more than 25 years, the maximum of which is life imprisonment. The trial court, however, determined that in this drug case, imposing even the minimum mandatory sentence of 15 years to life would constitute cruel and unusual punishment. Accordingly, the trial court imposed an indeterminate sentence of eight years to life imprisonment. A divided appellate court affirmed. The judges who the dissented voted to reverse the sentence and remand the case to Supreme Court for resentencing in compliance with the Penal Law’s mandatory sentencing provisions for an A-I felony conviction. The State appealed.

On further appeal, the court pointed out that courts have upheld the facial and validity of the mandatory maximum life imprisonment sentence and various mandatory minimum prison sentences as against challenges under the cruel and unusual punishment prohibitions of the State and Federal Constitutions. The court, in many cases, adopted the principle that a sentence may constitute cruel and unusual punishment by being ” ‘cruelly’ excessive, that is, grossly disproportionate to the crime for which it is exacted.”

Published on: February 13, 2012

Defendant Seeks to Reduce Sex Offender Threat Level

by Stephen Bilkis

In 1985, Juan Santos was convicted of one count of first degree rape, one count of second degree rape, four counts of first degree sodomy and four counts of second degree sodomy. The charges stemmed from claims brought by Mr. Santos’ two stepdaughters, who claimed that he forcibly raped and sodomized them on multiple occasions. Following his conviction, he was sentenced to a combined term of 25 to 50 years.

Mr. Santos’ criminal defense attorney filed a motion to set aside the verdict and this request was granted in 1991. The New York County Supreme Court was unable to determine why the conviction was overturned but the prosecutor in the case claimed they had arranged a plea agreement in which Mr. Santos would plead guilty to one count of first degree rape. In exchange, he received a sentence of 5 to 15 years, according to a New York Criminal Lawyer.

In September 2008, the court received a letter from the New York Board of Examiners of Sex Offenders concerning Mr. Santos’ risk level. The person who drafted the letter, Board Examiner Floyd Epps, stated that Mr. Santos had raped, sodomized, sexually abused and threatened the two victims over a period of several years. The letter also indicated that Mr. Santos claimed the charges were false and that his wife had encouraged the two girls to make up the story because she was angry that he was having an affair. In addition, Mr. Santos has denied committed the sex crimes he was charged with.

Published on: February 13, 2012

Court Rules on Sex Offender Classification

by Stephen Bilkis

In August 2002, Justin Palmer was accused of sexually molesting a 15-year-old girl in Florida. Five months later, he participated in an armed robbery of another Florida home. He pled guilty to both crimes and was sentenced to five years in prison. According to a New York Criminal Lawyer, after being released, he moved to Green County, New York. The Board of Examiners of Sex Offenders completed a risk assessment which classified Mr. Palmer as a Level One offender.

The prosecutor later argued that the Board failed to assign an additional 30 points based on Mr. Palmer’s conviction for the home 2003 home invasion. County Court determined that the robbery, while not a prior crime, should still be considered as an aggravating factor which would justify upgrading Mr. Palmer’s classification to a Level Two offender. Mr. Palmer subsequently appealed this decision to the New York Supreme Court Appellate Division, Third Department.

Specifically, Mr. Palmer argued that the prosecution failed to provide him and the County Court with the required 10-day written notice of their intent to seek a new offender classification. The court noted that this issue was never raised in County Court and therefore not subject to review. The appellate court also held that Mr. Palmer’s argument was without merit since the court record demonstrated that the he was well aware of what the prosecution was attempting to do with regard to upgrading his classification status. Therefore, his claim that his due process rights were violated was unfounded.

Published on: February 13, 2012

Defedant Seeks to Overturn Sex Crime Conviction

by Stephen Bilkis

Avery Maggio was charged with eight counts involving different sex crimes. According to a New York Criminal Lawyer, the charges were based on claims that he had sexually abused another child who rode the school bus with him on different occasions in 2005, 2006 and 2007. Mr. Maggio was convicted of three counts of committing a criminal sexual act in the first degree and two counts of first degree sexual abuse. He was sentenced to 15 years in prison and subsequently appealed his case to the Supreme Court of New York Appellate Division, Third Department.

The appellate court was charged with determining whether the evidence presented at trial was sufficient to warrant a conviction. Mr. Maggio’s criminal defense attorney argued that while his client admitted engaging in inappropriate sexual contact with a minor child, the evidence did not prove that he ever compelled the victim to participate through verbal or physical force. Under New York Penal Law, forcible compulsion must be considered from the victim’s perspective and weighed against their age, the size and strength of the person perpetrating the sex crimes and their relationship to the victim.

The court noted that Mr. Maggio was four years older than the victim at the time the sex offenses occurred and that the sexual contact began when the victim was only nine. The victim testified that when he was 12, Mr. Maggio had threatened him with physical harm if he did not agree to the sex acts. The victim also said that on another occasion, Mr. Maggio had forced his head down and ordered him to perform oral sex. Mr. Maggio also allegedly grabbed the victim’s testicles, arms, legs and knees on other occasions and threatened to kill both him and his mother if he did not comply.

Published on: February 13, 2012

Defendant Moves for Forfeiture in Drug Case

by Stephen Bilkis

A 40-year old man was arrested and charged with several drug crimes and violations, including criminal drug possession of a controlled substance, criminal use of drug paraphernalia, unlawful marijuana possession, and unlawful possession of fire works.

The accused, despite the absence of the district attorney, was permitted to enter a plea of the crime of possession of a controlled substance, which is classified as a misdemeanor. A New York Criminal Lawyer reported that the DA argued that he is authorized to exercise his right to proceed for forfeiture asserting that such proceeding can be brought against a person not even charged or convicted of any crime. Thus, the DA said, forfeiture against one convicted of a misdemeanor crime is appropriate.

A review of relevant criminal laws discloses that a forfeiture proceeding may be brought for a “pre-conviction forfeiture crime.” The court deduced that the only crime for which a forfeiture may be sought and ordered in advance of a conviction are the felony of criminal marijuana possession in the first degree and the crime of criminal sale of marijuana in the first degree. While the law authorizes the commencement of a forfeiture action before conviction for what are clumsily called “post conviction” forfeiture crimes, which are crimes other than the denominated drug related charges called “pre-conviction forfeiture crimes,” the statute nonetheless expressly provides that a court may not grant forfeiture until the conviction has occurred, the court noted.