Staten Island

Published on: October 19, 2012

Court Discusses Due Process Clause

by Stephen Bilkis

In this criminal case, petitioner fired several shots into the home of an African-American family and made a statement which he later retracted that he did not want the family in his neighborhood because of their race. A New Jersey Criminal Lawyer said that, he was charged under New Jersey law with, second-degree possession of a firearm for an unlawful purpose, (possession of a weapon), which carries a prison term of 5 to 10 years. The count did not refer to the State’s hate crime statute, which provides for an enhanced sentence if a trial judge finds, by a preponderance of the evidence, that the defendant committed the crime with a purpose to intimidate a person or group because of, inter alia, race. After petitioner pleaded guilty, a New York Criminal Lawyer said that the prosecutor filed a motion to enhance the sentence. The court found by a preponderance of the evidence that the shooting was racially motivated and sentenced petitioner to a 12-year term on the firearms count. In upholding the sentence, the appeals court rejected petitioner’s claim that the Due Process Clause requires that a bias finding be proved to a jury beyond a reasonable doubt. The State Supreme Court affirmed.

The issue in this case is whether petitioner has been denied of his right to due process.

The Court held that the Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt.

Published on: October 17, 2012

Defendant Claims Jury Instruction was Inappropriate

by Stephen Bilkis

In this case, Appellant appeals from a judgment convicting him of the crime of robbery. Appellant’s only contention on appeal is that the trial court erred in failing to give proper instructions as to the lesser included offenses of grand larceny and/or petit larceny. Appellant conceded that he did not request such an instruction or object to the charges actually given.

Appellant was charged by information with the crime of robbery in that he did by putting in fear, unlawfully and feloniously rob, steal and take away from the person and custody of the complainant, one (1) lot of coins and currency of the United States of America, of the value of Fifty-nine Dollars and Seventy-two cents ($59.72).

The night manager of a service station was working on the date of the alleged robbery. He testified that Appellant and his co-defendant held him up late one night with a pistol, robbed him of all the bills and change he had on his person, and also took a sum of money out of a cigar box. A New York Criminal Lawyer said the arresting officer, who seized defendants in close proximity to the service station immediately after the robbery, testified that he found in defendants’ possession the sum of $59.72, and put this money in a sack which was introduced into evidence and which included one roll of pennies wrapped in a distinctive wrapper used by the service station.

Published on: October 7, 2012

Plaintiff Alleges Bank Fraud Scheme

by Stephen Bilkis

The savings bank filed a motion for summary judgment in its action against the mortgage corporation and the guarantors for breaches of loan agreement and guaranty agreement, respectively, by the latter and for their charges against another defendant for the commission of bank fraud.

The plaintiff entered into a contract of loan at New Jersey with the mortgage banker wherein the savings bank extended a line of credit to the defendant for the purpose of closing the latter’s existing mortgage loans. In connection with the loan agreement, the officers, who are the owners of the mortgage corporation, executed individual guaranty contract which established their solidary liability of the mortgage banker’s obligation upon its failure to settle the obligations on time. A New York Criminal Lawyer said another guaranty was executed by the owner’s wife in relation with the loan agreement.

The stipulations of the loan agreement pertain to the grant of mortgage loans of the defendants’ borrowers where the line of credit shall be used to finance the mortgage contracts. Upon settlement of the mortgage loans by the borrowers, the proceeds of the loan would then be remitted to the savings bank and mortgage notes would be used as security in favor of the savings bank as part of their agreement. A Staten Island Criminal Lawyer said such mortgages would then be sold to potential investors and the plaintiff, as bailee, shall give the investors the mortgage notes where they shall pay the purchase price directly to the savings bank’s mortgage warehouse lenders who in turn would give the proceeds back to the savings bank as payment to the advances made by the defendants in their line of credit with the plaintiff. The defendants were responsible to the keeping of all the records pertaining to the loan agreement.

Published on: September 23, 2012

Court Decides Conspiracy Charges

by Stephen Bilkis

In this criminal case, a shoplifter had been apprehended and brought to the office of Carl G., a 22-year old office manager of a food store, and after some discussion G agreed to ‘forget’ the whole incident upon payment to him of $500. A New York Criminal Lawyer said upon reflection, the shoplifter disavowed the scheme and reported it to the District Attorney, who arranged for payment of the money to G.

When the money was paid G was arrested for extortion. Although G had retained counsel he inquired of defendant S, a security officer in his store, if he knew anyone who could help him. The next day S informed G that defendant B, an ex-state senator, had great influence and could perhaps have the charge dropped but it might involve paying off some people. He arranged for G to meet B. At this meeting attended by all three, B and G had a discussion in which S did not participate.

G was advised to discharge his attorneys; B ‘guaranteed’ he could produce a satisfactory result because of his influence with certain public officials and agreed to make an inquiry to determine how much of a pay-off might be required. At that meeting G intended to go along with B suggestion to turn over money to resolve or drop the pending charges. Before the scheduled second meeting, G upon reflection concluded that B was a name dropper who couldn’t do anything for him and advised S he had reconsidered B proposition, decided to decline his help and withdrew from any arrangement. S did not attempt to induce G continued participation in the scheme. Thereafter G revealed all these events to his attorneys, who advised the District Attorney, and G agreed to co-operate with him in an investigation of the defendants. By pre-arrangement with the District Attorney, G office was equipped with a hidden microphone and S was called to his office. G asked him whether B would ‘take him back on’. S indicated that B had become very displeased B for backing out of the original deal because he had done 3 or 4 days of research on his case. He did however arrange for another meeting. The record shows no other meeting between G and S, only the one meeting at which all three were present, and no other meeting between S and B. G, on the other hand, conferred with B on two more occasions, during both of which he was equipped with a concealed transmitter tuned to a receiver in the District Attorney’s car. At the second meeting Bauer advised Gmerek that he had discussed the extortion charge with the District Attorney and certain other people (when in fact the record reveals he had never done so); that the charges could be favorably disposed of for $3,000 but he would try for $2,000, and he requested Gmerek to bring that sum in cash at their next meeting. Gmerek was furnished the money in marked bills by the District Attorney, and after it was given to Bauer the latter was arrested.

Published on: September 19, 2012

Defendant Moves to Suppress Physical Evidence

by Stephen Bilkis

This is an appeal by the defendant from a judgment of the County Court, Nassau County, rendered October 21, 1993, convicting him of murder in the second degree (two counts), robbery in the first degree (two counts), criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. A New York Criminal Lawyer said the appeal brings up for review the denial, after a hearing, of the branch of the defendant’s omnibus motion which was to suppress statements made by the defendant to law enforcement officials.

The issue in this case is whether the defendant is entitled to the suppression of his statements made to the law enforcement officials.

In this possession of a weapon case, the Court said that, the People established that the police had probable cause to arrest the defendant without a warrant. Probable cause may be supplied, in whole or in part, through hearsay information. Under the Aguilar- Spinelli rule, when probable cause is predicated in whole or in part upon the hearsay statement of an informant, it must be demonstrated that (1) the informant disclosed a sufficient basis for his or her knowledge, and (2) the informant was reliable. Further, the basis-of-knowledge and veracity requirements of Aguilar- Spinelli are analytically independent and each must be satisfied separately. “Information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest.

Published on: September 17, 2012

Court Decides Alleged Mistreatment of Citizens of Philadephia

by Stephen Bilkis

Two suits, permitted to proceed as class actions, were brought in District Court under 42 U.S.C. § 1983 by respondents, individuals and organizations, against petitioners, the Mayor of Philadelphia, the Police Commissioner, and others, alleging a pervasive pattern of illegal and unconstitutional police mistreatment of minority citizens in particular and Philadelphia residents in general. The petitioners were charged with misconduct ranging from express authorization or encouragement of the mistreatment to failure to act in such a way as to avoid recurrence.

A New York Criminal Lawyer said the principal antagonists involved in one case were two police officer, not named as parties, who were found to have violated complainants’ constitutional rights in three of eight incidents as to which the District Court made detailed factual findings and as to which a five-day suspension had resulted in one incident and no disciplinary action in another. In the other case, in only two of 28 incidents did the District Court conclude that the police conduct amounted to a deprivation of a federally secured right; it found no police misconduct in four incidents; in another, departmental policy was subsequently changed; and, though the court made no comment on the degree of misconduct occurring in the remainder, there were arguably 16 police violations of citizens’ constitutional rights in the year involved.

A Suffolk Criminal Lawyer said that, the District Court found, that the evidence did not establish the existence of any policy on the part of petitioners to violate the constitutional rights of respondent classes but found evidence of departmental discouragement of complaints and a tendency to minimize the consequences of police misconduct. The court found that only a small percentage of policemen commit violations of the rights of Philadelphia residents generally but that such violations could not be dismissed as rare or isolated. Petitioners were directed to draft for the court’s approval “a comprehensive program for dealing adequately with civilian complaints” to be formulated in accordance with the court’s “guidelines” containing detailed suggestions for revising the police manuals and procedural rules for dealing with citizens and for changing procedures for handling complaints. On petitioners’ appeal the Court of Appeals affirmed.

Published on: September 12, 2012

Court Decides Jurisdiction in Drug Crime Case

by Stephen Bilkis

In this criminal case, the location of the premises where the alleged drug crime transactions took place is 151 West 228th Street. At the Grand Jury presentation the Assistant District Attorney elicited testimony from the undercover police officers who participated in the sales of drugs and in the arrests of the defendants. A New York Criminal Lawyer said the officers were members of the Bronx Drug Homicide Task Force and the Bronx Narcotic Major Case Unit. They were conducting a long term buy operation at this location and drug purchases were made there on October 18, 1994, October 21, 1994, November 3, 1994, November 4, 1994, and December 3, 1994. Arrest warrants were executed on December 8, 1994.

After the indictment was voted and before motions were made, it came to the attention of some of the defense attorneys that the premises were not in the Bronx but rather in Manhattan. This information was given to the attorney during another proceeding.

Counsel argues strenuously that unless the People prove proper venue before the Grand Jury, the Bronx Supreme Court does not have jurisdiction to try this case and the indictment must be dismissed.

Published on: September 10, 2012

Defendant Contends Court in Violation of 5th Amendment

by Stephen Bilkis

The facts of these “buy-and-bust” cases are straightforward. In this case, an undercover narcotics officer approached a man entering a store in Manhattan and asked where he could purchase drugs. Without answering, a the man walked over to defendant, asked him if he had “anything” and told him that the undercover was “looking.” Defendant said “you know how it works.”

Defendant then whistled across the street to defendant and raised two fingers. Defendant instructed the officer to follow the man across the street to a Chinese restaurant around the corner from a school. The two men entered the restaurant with defendant following behind them. Inside the restaurant, the man told defendant said to “give the officer one and to give me one too.” After handing the man a “small object” in exchange for a sum of money, defendant asked the officer, “how many do you want?” The officer replied, “one,” and handed Sepulveda $10 in prerecorded buy money in exchange for a glassine of heroin.

After the sale, the officer radioed the field team that he made a “positive buy” and gave a description and location of the sellers. Within minutes, the field team arrived at the location and apprehended both defendants, both of whom matched the descriptions given by the undercover officer. Shortly thereafter, the undercover officer made a drive-by confirmatory identification of both men. Although the arresting officer recovered heroin (drug possession) and prerecorded buy money from no drugs were recovered from defendant.

Published on: August 31, 2012

Court Rules on Juror Misconduct

by Stephen Bilkis

When jurors are chosen to sit on a trial jury, they are required to take the position seriously. The responsibility that is inherent to the position of a juror in a trial is heady to say the least. That is especially true when the person is called to put their lives on hold while they sit for weeks on a highly publicized trial jury. A New York Criminal Lawyer said that it can be almost impossible for anyone to shut themselves off from any information that relates to a trial that is in the news and on the television and radio every time that they turn one on. It is incumbent upon the court to ensure that the juror is aware of their responsibility and to take action against those jurors who violate the standards that are set.

Because the court realizes that it is sometimes impossible to prevent a juror from being exposed to some type of information about a case that is highly publicized, it is often at the discretion of the court to determine if that juror can put aside the information that they have been exposed to outside of the courtroom in order to make a decision on the case based solely on the information that is presented in the court. In most cases, a court simply asks the juror and accepts the juror’s response. However, there are times when that is not possible, for instance it may not be possible if the juror has been discovered to have discussed the case outside of the jury room with an uninvolved acquaintance. In most cases, when a juror is found to have participated in that type of misconduct, they will be dismissed from the jury and an alternate will take their place.

In one case that was a highly publicized rape and robbery case from 1973, the juror went to dinner with some friends while she was sitting on the jury. While at dinner, they were joined by some acquaintances of another one of her friends. In this group was a defense attorney. Over dinner, the woman told her tablemates that she was on the jury and that she had been instructed not to discuss the case. She stated that she had made up her mind about the man’s guilt, but that she would listen to the viewpoints of the other jurors before putting in her vote. Later in the day, she found out that the woman was a defense attorney and pointed asked her if she was familiar with the accuracy of DNA evidence as well as a few other questions. She also stated that she had looked on the computer to find out what the defense attorney’s credentials were. All of these statements are violations of the code of conduct for jurors. The defense attorney whom the woman had spoken to worked for the legal aid society.

Published on: August 25, 2012

Defendant Claims Double Jeopardy

by Stephen Bilkis

The Facts:

Allegedly, on 2 July 1979, the applicant led local police on a high-speed automobile chase through Norfolk and Suffolk Counties. He was finally arrested in Suffolk County and charged with various offenses by the District Attorneys in both counties. In Norfolk County, Quincy District Court, he was charged with driving so as to endanger, failure to stop for a police officer, failure to slow down for an intersection, and driving at an unreasonable speed. In Suffolk County, West Roxbury District Court, he was also charged with driving so as to endanger and failure to stop for a police officer, and in addition was charged with assault and battery with a motor vehicle.

A New York Criminal Lawyer said pursuant to Rule 37 of the Massachusetts Rules of Criminal Procedure, with the complaints pending in the respective county District Courts, the applicant moved in Quincy District Court to consolidate the cases into a single proceeding there. However, the Rule requires the written approval of both prosecuting attorneys to effectuate the transfer and consolidation. One of the District Attorneys apparently declined to approve the consolidation. Subsequently, the applicant moved for consolidation in at least one of the Superior Courts of Norfolk and Suffolk Counties, where his indictment was handed down, but the motion was similarly denied.