Criminal Procedure

Published on: March 19, 2013

Defendant Contends Improper Jury Instructions Were Given in Drug Case

by Stephen Bilkis

Case Facts

An informant contacted agents of the Drug Enforcement Administration and informed them that there were large transactions of large quantities of illegal drugs being made in the area. The informant then helped the Drug Enforcement Administration create a reverse sting operation. In the operation DEA officers poses as sellers of illegal drugs to help ferret out illicit drug traffickers. A New York Drug Possession Lawyer said the informant was instructed to put the word out that there was a large amount of marijuana available for sale.

The informant approached one of the bartenders at a local restaurant and told him that he had some friends that were looking for buyers for 1000 pounds of marijuana at $200 each. The informant told the bartender that they could easily make $25,000 each in the deal.

Published on: March 18, 2013

Court Decides if Defendant Has Right to Speedy Trial after Traffic Infraction

by Stephen Bilkis

The defense motion to dismiss the charge of Driving While Ability Impaired by Alcohol, a traffic infraction, pursuant to the speedy trial provisions of Criminal Procedure Law (CPL) is denied. While CPL does not apply to traffic infractions there is a constitutional right to a speedy trial which has not yet been violated.

A New York DWI Lawyer said it is undisputed that fifty-two days between the accused man’s arraignment and the complainant being ready for trial are chargeable to the complainant. The accused argues that the case should be dismissed as more than 30 days have passed since the accused man’s arraignment, the time allowed to be ready for trial on a violation.

Criminal Procedure Law establishes that when the accused is not in custody, the complainant must be ready for trial within 90 days if the highest crime charged is a class A or unclassified misdemeanor which is punishable by a term of imprisonment of more than three months or within 60 days if the highest crime charged is a class B misdemeanor which is punishable by a term of imprisonment of less than three months or within 30 days if the offense is a violation.

Published on: March 18, 2013

Defendant Seeks to Withdraw his Plea Based on Duress

by Stephen Bilkis

Defendant was indicted in three separate indictments by a Grand Jury charging him with two counts of assault in the second degree, escape in the second degree and resisting arrest; two counts of grand larceny in the third degree; and two counts of grand larceny in the second degree and one count of grand larceny in the third degree, respectively. Thereafter, a New York Criminal Lawyer said the People moved to permit defendant to withdraw his not guilty pleas to all three indictments and substitute therefor a plea of guilty to one count of grand larceny in the third degree with respect to the second indictment and one count of grand larceny in the second degree with respect to the third indictment, in full satisfaction of all three indictments and of a felony offense for which he had been arrested but not yet indicted.

On appeal defendant urges that the plea bargain was illegal because it encompassed dismissal of a felony complaint for which he had not yet been indicted. A New York Criminal Lawyer said the court ruled that while County Court had no authority to dismiss the felony complaint and did not purport to do so, the District Attorney had the discretion and authority to decline to continue prosecution of that offense. His agreement to do so as part of a negotiated plea is certainly legal.

Defendant next contends that his guilty plea to grand larceny in the second degree, a class D felony, permitted a maximum sentence of 3 1/2 to 7 years as a second felony offender. However, because the plea agreement provided for a sentence of 4 to 8 years in the event that defendant failed to make restitution of $11,000, defendant claims that his plea was illegal. We disagree. The Court viewed County Court’s action as an inadvertent misstatement. At the time of sentencing County Court properly sentenced defendant to a prison term of 3 1/2 to 7 years. It has long been the rule that a court has the inherent power to correct its own error in imposing sentence.

Published on: March 18, 2013

Defendant Charged with Stealing Contents of Airplane Hangar

by Stephen Bilkis

In this case, a security officer assigned at an airline’s hangar at Kennedy Airport was approached on numerous occasions in the spring of 1976 by the defendant, who indicated an interest in securing entry to the hangar and in taking money from the safe therein. The security officer was offered the chance to make some money if he co-operated. A New York Criminal Lawyer said during the course of these conversations, he was asked, in increasing detail, about the alarm system in operation at the hangar. The security officer reported these conversations to his supervisor, the head of security of the airline.

The security officer had been in continual touch with his supervisors and the police had been alerted. Indeed, by the time Defendant was permitted into the hangar, one gate was manned by an undercover police officer posing as a security guard.

On October 26, 1976, Defendants called the security officer and told him they wanted to “come in that night.” At 11:15 P. M. The security officer met defendant at a diner. At 11:30 they entered a car and were joined by the co-defendants, who was carrying an attache case. Enroute to the airport, defendant discussed the job with the security officer. Defendant told him that in five years, “when its all over,” his share would be sent to him. Defendant advised him that in order to make it “look good” he would shackle him and take his gun. The other security guard would be tied and dropped off at the edge of the airport.

Published on: March 18, 2013

Defendant Contends She Did Not Know She was Possessing Drugs

by Stephen Bilkis

A New York Criminal Lawyer said this case involves a 17 year old juvenile who is challenging an adjudication made against her for possession of drug paraphernalia.

Case Background

The girl was driving her car with three friends. She was involved in a car accident. When the police arrived at the scene of the accident the driver’s side door was opened. The juvenile stated that the car belonged to her mom, but she used it quite often. The officer looked in the car through the open door and saw a glass item on the floorboard. He recognized it as a pipe that is often used to smoke illegal substances.

Published on: March 5, 2013

Defendant Charged with Criminal Facilitation in the 4th Degree

by Stephen Bilkis

An appeal was made by the accused man from a judgment of the County Supreme Court rendered on October 26, 1983, convicting him of four counts of criminal facilitation in the fourth degree, upon a jury verdict, and the imposing sentence. A New York Criminal Lawyer said the judgment was affirmed and the matter was remitted to the County Supreme Court for further proceedings pursuant to the Criminal Procedure Law.

Pursuant to the defense counsel’s request, the trial court charged criminal facilitation in the fourth degree as a lesser included offense of grand larceny in the second degree and attempted grand larceny in the second degree. The accused man was ultimately found guilty of four counts of criminal facilitation in the fourth degree and acquitted of all other charges. The accused argues, as he did on his motion to set aside the verdict, that criminal facilitation in the fourth degree is not a lesser included offense of grand larceny in the second degree and attempted grand larceny in the second degree and that the defect in erroneously charging such a request is non-waivable inasmuch as it goes to the court’s subject matter jurisdiction. A New York Criminal Lawyer said criminal Term resolved both issues against the accused man. Since the accused man effectively waived any error in the submission of the charge of criminal facilitation in the fourth degree to the jury, the Appellate Court affirms.

A comparative evaluation of the two operative statutes, grand larceny in the second degree and criminal facilitation in the fourth degree reveals that the latter is not a lesser included offense of the former because it is theoretically possible for a person to commit the crime of grand larceny in the second degree without intending to aid anyone else in the commission of a felony.

Published on: March 5, 2013

Defendant Claims Drugs Weren’t His

by Stephen Bilkis

A New York Criminal Lawyer said the defendant is appealing two orders that were made by the County Circuit Court. The first order that is being appealed denied his motion for post-conviction relief. The second order revoked his probation and imposed a prison sentence.

The defendant raises three main points on appeal. First, the court erred in denying his motion for relief because he was on probation and was not a prisoner in custody under the sentence when he made the motion. Second, the evidence was not sufficient in the case to support the fact that he had constructive possession of the legal illicit drugs. Finally, he argues that the court erred in his sentencing by not following sentencing guidelines.

Case Background

Published on: March 4, 2013

Court Discusses Single Transaction Rule in Marijuana Possession Case

by Stephen Bilkis

The appellant in this case was charged with selling a controlled substance, cannabis and for having more than five grams of cannabis. A New York Criminal Lawyer said the appellant was convicted on both charges and was sentenced separately for each of the crimes. The appellant argues that the trial court has violated the single transaction rule by imposing separate sentences for the sale and the possession of marijuana.

Case Background

The evidence that was shown at trial revealed that there were two undercover police officers who met three individuals at a bar in town. One of the individuals told the undercover agent that they could obtain a quantity of marijuana. The agents were driven to another bar by their companions.

Published on: March 3, 2013

Juvenile is Charged with Cocaine and Marijuana Possession

by Stephen Bilkis

A juvenile is appealing adjudications made against him that found him guilty of possession of cocaine and marijuana. A New York Criminal Lawyer said he states that the trial court erred when they denied his motion for judgment of acquittal when the state had failed to present substantial evidence to prove constructive possession of the contraband.

Adjudicatory Hearing

During the adjudicatory hearing there was testimony that revealed that the defendant along with a friend asked another person for a ride to a woman’s house to pick up some items. The defendant rode in the back of the individual’s truck. The defendant and his friend got out of the truck at the house. The young men did not know that the house was under surveillance.

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.