Criminal Procedure

Published on: March 2, 2013

Defendant Found With Stolen Prescription Pad

by Stephen Bilkis

The Facts of the Case:

On 9 October 1980, at approximately 11:30 A.M., the defendant was arrested on East 40th Street in Manhattan, in possession of a blank prescription pad bearing the name of a certain doctor, a hypodermic syringe, twelve tablets of Triavil, and one bottle of Procaine. Thereafter, a New York Criminal Lawyer said the arresting officer, a Police Officer of the 9th Precinct, telephoned the doctor concerned at his Bronx office, inquiring whether the doctor had been burglarized. The doctor informed the officer that he was not aware of any burglary at his Manhattan or Bronx office, but that the man arrested was not authorized to take, use, or possess the property. Thus, the officer charged the defendant with Criminal Possession of a Controlled Substance in the Seventh Degree, Criminally Possessing a Hypodermic Needle, and Criminal Possession of Stolen Property in the Third Degree. Defendant was given a Desk Appearance Ticket, returnable on 24 October 1980. A misdemeanor complaint containing these charges was filed with the court.

On the same day, at about 3:00 P.M., when the aforesaid doctor arrived at his Manhattan office, he discovered that it had indeed been burglarized. The doctor reported the incident and officers from the 17th Precinct Burglary Unit responded. On this call, one of the Police Officers lifted a latent fingerprint from a cigarette package apparently left by the burglar. The doctor informed the Burglary Unit officers of the earlier telephone call he had received at his Bronx office, but was unable to recall the name, shield or command of the earlier caller. All attempts of the 17th Precinct Burglary Unit to ascertain the identification of that first caller proved unsuccessful.

Published on: March 1, 2013

Defendant Contends Sobriety Check Point was Illegal

by Stephen Bilkis

At around midnight of April 15, 1992, the police set up a DWI checkpoint at the corner of Clinton and Stanton Streets in Manhattan. The police officers set up the checkpoint so that all the passing cars would be funneled into one lane and every motorist would have to pass the checkpoint.

A New York Criminal Lawyer said when the accused drove up to the check point, the police officer was standing near the driver’s side. He knocked on the window and the driver rolled down his window. The police officer asked the driver something which he could not remember when he testified at the probable cause/ preclusion hearing. Even the accused could not remember what the police officer asked him.

At this time, the police officer asked the driver to pull over to the side of the street because he saw that the driver had watery bloodshot eyes and he could smell alcohol on his breath. When the driver was already parked on the side of the road, the police officer asked him to exit the car. The driver was unsteady on his feet. The driver told the police officer that he drank two beers and had to shots of vodka. The police officer also found an empty bottle of vodka in the car.

Published on: March 1, 2013

Court Determines if 18yr. Old Must Register as a Sex Offender Under SORA

by Stephen Bilkis

An 18 year old man was indicted in Florida for Sexual Battery in October 1997. When he was arrested and arraigned under the indictment, the 18-year old entered a nolo contendere plea (this means he did not plead guilty or not guilty but that he was not contending the indictment). A New York Sex Crime Lawyer said the trial court withheld a judgment of conviction and instead ordered that the 18-year old be placed under order of supervision. He was required to be under four years’ probation. The Florida trial court also ordered the 18-year old to register as a sex offender in the state of Florida. This sexual offender registry is the equivalent of New York’s sex offender registry under the Sex Offender Registration Act.

The 18-year old finished his four-year probation. In February 2006, the 18-year old wrote to the Criminal Justice Services of the state of New York to inform it that he was a registered sex offender in Florida who was contemplating on moving to New York.

The Criminal Justice Services sent him the sex offender registration forms by mail and sent him a letter requiring him to register under the SORA. A New York Criminal Lawyer said the Board also recommended that he be registered as a sex offender. The Supreme Court in Kings County assessed his risk level as level 1.

Published on: March 1, 2013

Court Discusses Charge of Criminal Facilitiation

by Stephen Bilkis

A man was indicted on charges of four counts of grand larceny in the second degree. He was arraigned and he was tried. A New York Criminal Lawyer said that after the presentation of the evidence for the prosecution, the counsel for the accused asked the court that instead of the four counts of grand larceny, the court consider instead charging the accused of four counts of criminal facilitation in the fourth degree. The trial court found that criminal facilitation in the fourth degree was a lesser included offense of Grand Larceny.

The trial court charged the man instead of four counts of criminal facilitation. The jury convicted him of the same charges and he was sentenced. The accused filed a motion to set aside the verdict of guilt on the ground that the lesser criminal offense of criminal facilitation is not a lesser included offense of grand larceny.

It was the contention of the accused that since the trial court did not have jurisdiction over the crime of criminal facilitation, it cannot have the power to charge the accused of that crime. However, the Supreme Court or Queens County found that since the accused himself moved that he be charged with the lesser included offense of criminal facilitation, he has waived his right to question the charge.

Published on: March 1, 2013

Defendant Found Breaking into Vehicle with Screwdriver

by Stephen Bilkis

A man, the herein defendant, was observed by a police officer breaking into a motor vehicle using a screwdriver. He was then arrested and indicted. A New York Criminal Lawyer said the indictment originally charged him with, inter alia, attempted grand larceny in the second degree based on an allegation that he attempted to steal property, an automobile, with a value of more than $1,500. However, this charge was incorrect, inasmuch as the attempted grand larceny in the second degree, pursuant to Penal Law, requires an allegation that the property exceeded $50,000 in value. Thus, shortly before trial commenced, the prosecutor moved, without any objection by defense counsel, to amend the indictment to charge attempted grand larceny in the third degree on the basis that the defendant attempted to steal property valued in excess of $3,000. The proposed amendment was legally correct and conformed to the evidence and the instructions presented to the Grand Jury. However, although the court indicated that it would grant the motion, only the accusatory portion of the count was amended from attempted grand larceny in the second degree to attempted grand larceny in the third degree; the factual portion alleging that the value of the subject property exceeded $ 1,500 remained unchanged, and therefore, the count was still incorrect. Thereafter, on 8 August 1995, the Supreme Court of Queens County rendered judgment convicting him of attempted grand larceny in the third degree, criminal mischief in the third degree, and possession of burglar’s tools, upon a jury verdict, and imposing sentence.

Consequently, the defendant files an appeal from the said decision.

The Ruling of the Court:

Published on: March 1, 2013

Defendant Claims an Error was Made in Sentencing

by Stephen Bilkis

The petitioner is a federal prisoner who has petitioned to have an error of law in the calculation of his sentenced based on a Supreme Court Decision that interpreted sentence guidelines. This decision was made eleven years after the defendant was sentenced.

A New York Criminal Lawyer said the issue before the court is whether the savings clause permits a federal prisoner to challenge his sentence in a habeas corpus petition when he could not raise that challenge in motion because of the bar against successive motions.

Petitioner’s Argument

Published on: February 28, 2013

Court Reverses Grand Larceny Indictment

by Stephen Bilkis

In this proceeding, an intermediate order denying a motion to dismiss an indictment will have a review from the Supreme Court.

A New York Criminal Lawyer said it appears from evidence presented that a bank, a trust company and another corporation executed a statement of trust receipt financing. At the grand jury trial, the three officers of the bank were called as witnesses. The bank paid the automobile company the total sum of $21,430.59 for eight automobiles. An employee of the bank checked the floor plan of the corporation and found out that four from eight of the cars were missing. Another check was made five days later and the remaining four cars were also missing from the floor. Consequently, a letter was delivered to the corporation by the bank in which they demand payment of all amounts due under trust receipts or immediate possession of all new and used cars on which the bank held trust receipts. A similar notice was served and in the interval checks had been received by the bank drawn by the corporate dealer in payment of the amounts due on two of the cars. The checks were not paid because of insufficient funds. The bank received neither the automobiles nor the moneys due.

It was upon the evidence that an indictment was returned accusing the president of the corporation, individually, of the crime of grand larceny in the first degree. The president of the corporation, which was the trustee, secreted, withheld and appropriated to his own use, and that of a person other than the true owner of the automobiles.

Published on: February 28, 2013

Defendant Questions Court Jurisdiction

by Stephen Bilkis

The Facts of the Case:

Defendants stole people’s identities, committed bank fraud when opened fraudulent bank accounts in the victims’ names, and transferred money from the victims’ legitimate bank accounts to the fraudulent ones they controlled from an extensive enterprise which they oversaw. Thus, a New York Criminal Lawyer said they were indicted, among other things, eight incidents of grand larceny in the second and third degrees, based upon the transfer of funds from five separate legitimate bank accounts into five separate fraudulent accounts, after which the stolen funds were withdrawn; three instances of grand larceny in the second degree, based upon the deposit of stolen checks issued to an advertising firm into a fraudulent account defendants had opened in the firm’s name in order to steal the funds. Count one of the indictment charged defendants with grand larceny in the first degree which requires that the stolen property’s value exceed $1 million. Thereafter, on 2 November 2006, the Supreme Court of New York County rendered judgment convicting each defendant, after a jury trial, of grand larceny in the first degree, grand larceny in the second degree (four counts), grand larceny in the third degree (seven counts), forgery in the second degree (seven counts), criminal possession of a forged instrument in the second degree (eight counts), identity theft in the first degree (six counts) and scheme to defraud in the first degree, and sentencing defendant-one to an aggregate term of 10 to 25 years and sentencing defendant-two to an aggregate term of 12½ to 25 years.

Defendants questioned the court’s decision and claim that their convictions for first degree grand larceny should be vacated because the prosecution achieved the statutory monetary threshold by improperly aggregating the amounts taken from five individuals on eight different occasions and one advertising firm on three different occasions. A New York Criminal Lawyer said the People oppose defendants’ contention and argue that the aggregation was proper because defendants’ thefts were made pursuant to a single intent and one general fraudulent plan.

Published on: February 27, 2013

Defendant Claims that Theft Charges Were Time Barred

by Stephen Bilkis

In 1991, the man assumed administrative duties at a nursing home. He became its principal operator in 1995. A New York Criminal Lawyer said at all relevant times, the nursing home was a participant in the Medicaid programs and was reimbursed through such programs for services provided to each state’s residents who were Medicaid recipients residing within its facility.

In 1993, the man, on behalf of the nursing home, submitted rate reports to the state setting forth the nursing home state rate. He thereafter certified that the nursing home was also going to provide physical, occupational and speech therapy services, as well as dental services, to the state’s Medicaid recipients but that the cost of such services was not included in the home state rate. Based upon the said reports, the state calculated the nursing home’s daily rate and then included add-on payments for the specified ancillary services.

In 1998, the state advised the nursing home that they going to review the services they provided to the state’s Medicaid recipients by out-of-state providers. They also requested the nursing home to make available for inspection all patient records dating back 1992. Following the said investigation, the man and the nursing home were each charged with two counts of grand larceny in the first degree and two counts of grand larceny in the second degree.

Published on: February 27, 2013

Court Maintains that Grand Larceny Must be Proven Beyond a Reasonable Doubt

by Stephen Bilkis

The Facts of the Case:

A New York Criminal Lawyer said on 16 May 1984, defendant was convicted by the County Court of Nassau County of grand larceny in the second degree (three counts), grand larceny in the third degree, petit larceny, commercial bribing or bribery in the first degree and scheme to defraud in the first degree or bank fraud, upon jury verdicts, and attempted grand larceny in the second degree (three counts), upon his pleas of guilty.

Defendant then filed an appeal from the aforesaid six (6) judgments of criminal convictions and contends that the Attorney-General was not properly authorized to conduct Grand Jury proceedings in accordance with Executive, and that the additional Grand Jury which returned the indictments against him was not impaneled in accordance with the rules of the court.