Articles Posted in Gun Possession

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By petition, the respondent is alleged to have committed an act which, were he an adult, would constitute the crime of Criminal Possession of a Weapon in the Fourth Degree. The respondent is also alleged to be a juvenile delinquent by reason of his alleged violation of Penal Law which prohibits the possession of weapons by persons less than sixteen years of age.

Claiming to be aggrieved by an unlawful search of his person, the respondent has moved to suppress the introduction of tangible property recovered by police officers on the date of his arrest.

With respect to tangible evidence, the Presentment Agency has the initial burden of going forward to show the legality of the police conduct, while the criminal respondent bears the ultimate burden of proving that the evidence should be suppressed.

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Defendant was charged in 1974 with sale and possession of methadone, a Class A–II felony at the time of his indictment. Upon motion before the Court, the charge was reduced to a Class A–III felony.

A Queens County Criminal attorney said that prior to trial, the law respecting possession and sale of methadone was changed to lessen the severe penalties attached to such crimes. The legislature specifically provided for retroactive application of the new Penal Law sections. The court, over defendant’s objection, amended the accusatory instrument to reflect the newly instituted regulatory scheme. Thereafter, defendant was tried and convicted of criminal sale of a controlled substance in the fifth degree, a Class C felony under the amended section 220.34 of the Penal Law.

Defendant is a second felony offender. He claims that due to his predicate felony status, sentencing, pursuant to the recently enacted Penal Law provisions, might result in the imposition of a longer minimum sentence. This, he contends, would thus constitute harsher punishment in violation of the prohibition against ex post facto legislation. The People contend that the Penal Law revisions were designed to ameliorate the severe penalties imposed under the ‘Rockefeller Drug Law,’ and, consequently, would not be an unconstitutional retroactive application of the law.

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Ordered that the order is reversed, on the law, those branches of the criminal defendant’s omnibus motion which were to suppress physical evidence and identification testimony are denied, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.

A Queens Drug Crime Lawyer said that, the defendant was arrested during a so-called buy and bust operation after an undercover officer observed him give a quantity of pills to a man on the street in exchange for a $10 bill at 160th Street and Jamaica Avenue in Queens County. The defendant moved, inter alia, to suppress certain items, including narcotics found on his person, as well as identification testimony by an undercover police officer, on the ground that the police did not have probable cause for his arrest. The Supreme Court concluded that the People failed to establish probable cause for the defendant’s arrest and granted his motion.

The issue in this case is whether criminal defendant’s motion to suppress the evidence against him on the ground that there exist no probable cause during his arrest.

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In this Criminal action, Defendant challenges his arrest and the seizure of physical evidence. At issue is the right of the police to stop a taxi for the purpose of handing out safety pamphlets.

In July 1994, Police Officer and Detective, both of the same Robbery Squad Precinct, were on patrol duty in Queens. They were dressed in plainclothes and rode in an unmarked car. This team was temporarily assigned to the Taxi Livery Robbery Task Force. Their assignment, for a period of 30 days, was to conduct a safety check on cabs, giving them advice on the services rendered by the Police Department to taxicabs and advising them of hazardous conditions within their industry. Their major duty consisted of stopping cabs and issuing a departmental pamphlet, entitled “Safety Tips for Cab Drivers.” In addition, they would advise taxi drivers that plainclothes officers were present in the area and if assistance was needed, they could request help.

At approximately 3:00 A.M., the officers were in the vicinity of 113th Street and Farmers Boulevard performing their duty of stopping cabs. At that time, the Officer observed a moving 1986 Ford vehicle bearing a taxicab license plate. Two people were in the rear. The officers, who had previously stopped three other cabs, made a U-turn and drove behind the taxi. For a short while they flashed their lights and sounded their siren for the purpose of pulling the taxi over.

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The defendant moves to suppress physical evidence and his statements. He is charged in two (2) indictments as follows: the defendant is charged with the crimes of burglary in the second degree, grand larceny in the fourth degree, petit larceny and criminal possession of stolen property in the fifth degree.

A Queens County Criminal attorney said that in October 2011 a Detective, of the 104th Precinct Detective Squad, a nineteen (19) year veteran of the NYPD and a detective for almost thirteen (13) years, was assigned to investigate a burglary that took place at Middle Village, Queens. Another Police Officer, an eight (8) year veteran of the NYPD and also working with the 104th Precinct Detective Squad, was assigned to investigate a burglary that took place a day earlier; at Middle Village, Queens. They worked together on these cases.

In October 2011, the Det. placed a telephone call to the defendant and speaking in English, asked him to come to the precinct and speak with him. The defendant spoke to him in English. They scheduled an appointment two (2) days later. The Det. did not recall telling the defendant why he needed to speak to him. The Det. did not tell the defendant that he would be coming in to surrender. The Det. had been given the defendant’s name, address and telephone number by the co-defendant, who had been arrested earlier that day. The Co-defendant had told the detective that the defendant was with him when he committed the burglaries and that he had driven the defendant’s minivan during the burglaries.

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A Queens Criminal Lawyer said that, defendant moves pursuant to Criminal Procedure Law §440.10(h) to vacate the judgments of conviction in six cases, arguing that his prior plea attorney failed to provide effective assistance of counsel during and prior to his guilty pleas in the Queens Misdemeanor Treatment Court (QMTC). Defendant, who is currently facing removal proceedings initiated by the United States Department of Homeland Security, claims that he advised his plea attorney that he was not a citizen but a lawful permanent resident, and that his plea attorney failed to advise him regarding the immigration consequences of his guilty pleas. Defendant, who was required to complete drug treatment as a condition of his pleas, also alleges that had plea counsel correctly advised defendant regarding the immigration consequences of his pleas, he would not have pled guilty and would have proceeded to trial on his six cases.

A Queens Drug Crime Lawyer said that, soon after defendant filed his motion, the United States Supreme Court decide the 2010 case, which held that counsel for criminal defendants are constitutionally obligated to advise their non-citizen clients regarding the adverse immigration consequences of their guilty pleas. Defendant’s motion to vacate raises important questions regarding, inter alia, the scope of defense counsel’s in the 2010 case-imposed duty to provide immigration advice to non-citizen defendants charged with removable/deportable offenses, particularly where, as here, such defendants enter drug treatment in exchange for a promise that the underlying pleas would be vacated and the charges dismissed. The motion to vacate also raises important questions regarding the scope of the Court’s review in determining whether there is a reasonable probability that defendant would have insisted on going to trial had he been properly advised as to the immigration consequences of his guilty pleas.

Defendant was arrested a total of six times over a nine month period in 2009. Initially, defendant had three open cases referred to the QMTC. The charges in those cases included Criminal Possession of Stolen Property in the Fifth Degree (PL §165.40) (two counts), Criminal Possession of a Controlled Substance in the Seventh Degree (PL §220.03), Assault in the Third Degree (PL §120.00), Petit Larceny (PL §155.25) and Harassment in the Second Degree (PL §240.26). These cases were referred to the QMTC after the People offered a plea disposition which would have required defendant to plead guilty to an unspecified class A misdemeanor with a sentence of three years’ probation on one case; an unspecified B misdemeanor with a sentence of a conditional discharge and either five days of community service or a $250 fine on another case; and a violation, Disorderly Conduct (PL §240.20), with a sentence of a conditional discharge.

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A Queens Criminal Lawyer said that, this is a proceeding for judgment pursuant to Article 78 of the CPLR that was originated by the petition of petitioner, including his June 23, 2010 Affidavit in Support of Order to Show Cause, verified on June 23, 2010 and filed in St. Lawrence County Clerk’s office on July 9, 2010. Petitioner, who is an inmate at the Riverview Correctional Facility, is challenging the time computation associated with his current incarceration in DOCS custody.

A Queens Drug Crime Lawyer said that, the Court issued an order to Show Cause on July 23, 2010 and has received and reviewed respondents’ Answer and Return, including confidential Exhibits B and C, verified on September 24, 2010. By Letter Order dated November 7, 2010 the respondents were directed to supplement their answering papers by addressing the issue of petitioner’s entitlement to parole jail time credit for the period from May 6, 2009 to June 8, 2009. In response thereto the Court has received and reviewed respondents’ Supplement to Verified Answer and Return dated December 1, 2010. The Court has also received and reviewed petitioner’s Reply, filed in the St. Lawrence County Clerk’s office on December 10, 2010.

A Queens Criminal Lawyer said that, on January 19, 2006 petitioner was sentenced in Supreme Court, Bronx County, to a determinate term of 2½ years, with 3 years’ post-release supervision, upon his conviction of the crime of Attempted Robbery. He was received into DOCS custody on February 8, 2006, certified by the New York City Department of Correction as entitled to 561 days of jail time credit (Penal Law §70.30(3) and Correction Law §600-a). At that time the maximum expiration date of petitioner’s 2½-year determinate term was calculated as January 21, 2007. On September 11, 2006 petitioner was conditionally released from DOCS custody to the judicially imposed 3-year period of post-release supervision. As of the September 11, 2006 conditional release date, DOCS officials calculated that petitioner still owed 4 months and 10 days against the 2½-year term of the determinate sentence. That time period was properly held in abeyance by DOCS officials pursuant to Penal Law §70.45(5)(a).

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This was an appeal by the defendant from a judgment of the Supreme Court, Queens County, rendered on 14 June 1972, convicting him of attempted criminal possession of a weapon, among others, as a felony, upon his guilty plea, and imposing sentence. The appeal brought for review an order of the same court, dated 25 May 1972, which denied defendant’s motion to suppress physical evidence.

On 10 March 1972 at about 12:30 A.M., Patrolman RL and his partner, Patrolman B, were stationed in an unmarked car in the vicinity of 107th Avenue and New York Boulevard in Queens. Their vehicle was painted to look like a taxicab, but contained a police radio. He described the area as ‘a very heavy drug crime prone location’, where numerous arrests for stolen cars and other stolen property are made. The officers parked the vehicle about a half block from a bar on New York Boulevard which was ‘under observation’. They were facing toward the bar and were parked across the street from it.

At that time they observed a late model Cadillac, driven by herein defendant MF, pulled up and double parked outside the bar. The only one in the car was the driver as he did not get out of the car. The car remained double parked for ‘not even one minute’, and then drove off. The car just went around the block. Then the car appeared again a short time later, double parked in the same place and, within ‘less than a minute’, drove off a second time. At that point Patrol RL told his partner that he ‘intended to stop the car and check it out.’

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On 12 August 1992, the defendant was sentenced as a Youthful Offender to time served and five years of probation upon his guilty plea to robbery in the second degree. On 31 January 1994, the Probation Department filed a Declaration of Delinquency and Specifications alleging that the defendant had violated the terms and conditions of his probationary sentence by knowingly and unlawfully selling a narcotic drug. The same allegation led to the defendant’s indictment for criminal sale of a controlled substance in the third degree. He has pleaded not guilty to both the specification and the new indictment.

The defendant filed this motion presenting the issue of whether a Violation-of-Probation proceeding, based upon the defendant’s alleged commission of a newly-indicted drug crime, must be held in abeyance until the new charges were resolved by way of guilty plea or trial.

The defendant contended that all proceedings on the violation of probation must be held in abeyance pending resolution of the charges in the indictment. He relied largely on the dictum enunciated in People v Amaro (1974) where the Court held that a judicial declaration of delinquency and the issuance of a bench warrant for a probationer’s arrest were not authorized upon a mere allegation or showing that the probationer has been arrested for a new offense.

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At approximately 3:00 P.M., three men wearing hooded sweatshirts entered a restaurant. The men waited by the door for a few minutes until all of the customers left. One of the men then approached the register and placed an order. After receiving the order, the three men went into the bathroom. A few moments later, two of the men returned to the register, and at that time, according to a cashier, the taller of the two men, who was wearing a gray hooded sweatshirt, pulled out a gun and instructed her to give them all of her money.

The cashier testified at the trial that she was approximately 5’6 1/2 tall and that the man was much taller than she was, probably about 6’2. She further stated that she did not saw the man’s face, however, because the robbers had instructed her not to look at them. The robbers also took money from another cashier.

While the holdup was in progress, the restaurant manager came downstairs from the second floor of the store and entered the area behind the register. From a distance of about six to nine feet, the manager was able to observe, for about five or ten seconds, the face of the man wearing the gray sweatshirt and holding the gun. The hood of his sweatshirt was drawn tightly around his head so that his hair and ears were not visible, and the shape of his head was obscured. But, the manager asserted that he saw their eyes, nose and mouth. At that distance, the manager, who testified that she was 5’6 or 5’7 tall, stated that she made eye contact with the robber with the gun. She later estimated his height at 5’7 or 5’8, and further described him as having a small goatee.

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