New York Criminal Lawyer Blog

Published on: May 13, 2014

Violation-of-Probation hearing

by Stephen Bilkis

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.

Published on: May 12, 2014

Massachusetts and Queens County offenses were different

by Stephen Bilkis

A Queens County Criminal lawyer said that petitioner stole a car and drove it to Boston, Massachusetts. About three weeks later he was indicted in Boston for three offenses, one of which was the offense of operating the stolen car in Boston, without authority from the owner, after petitioner’s right to operate automobiles in Massachusetts without a license had been suspended.

After a trial in which the owner of the car testified, petitioner was convicted of all three offenses; he was given a suspended sentence of two years for the offense of driving without authority, and a sentence of six months for the other offenses. The suspension of the two-year sentence was thereafter revoked, and he eventually served both sentences.

In the meantime, petitioner had been indicted in Queens County for the theft of the first car. The indictment contained two counts, namely (a) taking, removing, operating and driving the car in Queens County, for the operator’s own profit, use and purpose, and without the owner’s consent, Penal Law, § 1293-a; and (b) ordinary grand larceny, Penal Law, § 1290. After his release from the Massachusetts jail, petitioner returned to New York and appears to have been apprehended. He thereupon pleaded guilty to petit larceny under the Queens County indictment, and was remanded to the city prison for sentence.

Published on: May 12, 2014

People v. Trujillo

by Stephen Bilkis

People v. Trujillo

Court Discusses Whether the Sentenced Imposed by the Court on a Persistent Offender was Excessive

The defendant was convicted of driving while intoxicated and sentenced to definite term of imprisonment of one year based on his criminal history and probation violation. The defendant had a long criminal history beginning from 1979 where he was charged with assault in the second degree, grand larceny, and leaving the scene of an accident, he was sentenced to period of probation as he was a youthful offender. In 1983 he was convicted of the class “C” felony of attempted criminal sale of a controlled substance in the third degree and sentenced to a sentence of five years of probation to run concurrent with a six-month term of imprisonment. In 1984 he was arrested for driving while intoxicated on three separate occasions but was convicted of one count of driving while intoxicated DWI and one count of driving while impaired. He received a sentence of probation and a fine. The defendant appealed the sentenced imposed of one year imprisonment for driving while intoxicated.

Published on: May 12, 2014

People v. Blackman

by Stephen Bilkis

People v. Blackman

Court Discusses Section 160.50 of the CPL to Determine Whether the Defendant’s Record should be Sealed

The defendant requested to seal her record and to return her prints pursuant to section 160.50 of the Criminal Procedure Law. The defendant was charged with driving while intoxicated DWI and driving while intoxicated in violation of section 1192(3) of the Vehicle and Traffic Law. The defendant was also charged with disorderly conduct, a violation of Section 240.20 of the Penal Law which she pled guilty to with the imposition of a conditional discharge sentence. The defendant asserted that her fingerprints and photograph be returned when both were taken when she was charged for driving while intoxicated since she pled guilty to a non-printable offense of disorderly conduct. The defendant stated that she was entitled to the benefit of section 160.50 of the CPL as the criminal proceeding was terminated in her favor. The defendant relied on the cases of People v. Flores, 393 N.Y.S.2d 664, People v. Miller, 394 N.Y.S.2d 1006, and Dwyer v. Guido, 54 A.D.2d 956, which returned the accused fingerprints, photographs and sealed the records.

Published on: May 10, 2014

Subdivision 5 of CPL § 190.50

by Stephen Bilkis

A Queens Criminal Lawyer said that, this is a proceeding by petitioner pursuant to article 78 of the CPLR to prohibit the respondents, a Justice of the Supreme Court, Queens County, and the District Attorney of said county, from further proceeding against him under indictment No. 603-85, and to dismiss said indictment outright.

A Queens Robbery Lawyer said that, petitioner, at his arraignment, served written notice upon the District Attorney of his desire to testify before the Grand Jury. The matter was ultimately presented to the Grand Jury and an indictment was voted on February 14, 1985, charging the petitioner with grand larceny in the second degree, criminal possession of stolen property in the first degree, and unauthorized use of a vehicle in the third degree. Petitioner received no notice regarding the convening of said Grand Jury. Accordingly, he moved, within five days after his arraignment, to dismiss the indictment on the ground that he had been denied his right to appear and testify before the Grand Jury under subdivision 5 of section 190.50 of the Criminal Procedure Law.

A Queens Felony Lawyer said that, Criminal Term granted the application on condition, however, that petitioner appear before another Grand Jury and directed that in the event of his failure to appear, the indictment was to “remain in full force and effect”. Petitioner thereafter commenced the instant article 78 proceeding. On June 10, 1985, the date on which the District Attorney was to have resubmitted the matter to another Grand Jury, petitioner notified the District Attorney’s office that he had decided against testifying. As a result, the District Attorney did not re-present the charges and by the terms of the Justice’s order, indictment No. 603-85 remains in full force and effect.

Published on: May 10, 2014

Marijuana Recovered from the Window Sill

by Stephen Bilkis

A New York Marijuana Possession Lawyer said that, the defendant is charged with Criminal Possession of Marijuana in the Fifth Degree (P.L. § 221.10(1)). In an omnibus motion, defendant seeks: (1) dismissal of the charge on grounds of facial insufficiency; (2) suppression of all physical evidence allegedly obtained from defendant; (3) to preclude the prosecution from presenting identification and statement testimony at trial for which they failed to give timely notice; and (4) to preclude the prosecution’s use of defendant’s prior or subsequent criminal history, or uncharged criminal, vicious, or immoral conduct.

A New York Drug Possession Lawyer said that, the defendant also seeks discovery, submits a Demand to Produce and a Request for a Bill of Particulars, and seeks reservation of rights to make additional applications based on the People’s production and subsequent case development. The People respond to the defendant’s motion, provide their Voluntary Disclosure Form, and seek discovery from the defendant.

The issue in this case is whether defendant’s omnibus motion should be granted.

Published on: May 9, 2014

The informer related criminal activity

by Stephen Bilkis

The county police found evidence involving a man in a number of burglaries. As a result, the said man was indicted for the crime of burglary in the third degree and two counts of grand larceny in the third degree. The man also faced a charge of petit larceny.

After an unsuccessful attempt of the man to controvert the search warrant, he pleaded guilty to two counts of petit larceny, in full satisfaction of all the criminal charges in the indictment. He also pleaded guilty to the petit larceny charge.

Subsequently, the single issue presented for the court’s consideration is whether there was probable cause to support the issuance of the search warrant.

Published on: May 9, 2014

CPL 440.30 (4)

by Stephen Bilkis

A Suffolk Criminal Lawyer said that, by motion submitted October 19, 2011, defendant moves to vacate his judgment of conviction pursuant to CPL 440.10 (1) (h). On May 15, 1975, judgment was entered against the defendant in Supreme Court, Bronx County, convicting him upon his plea of guilty to robbery in the third degree (PL 216.05). On May 15, 1975, defendant was sentenced to a maximum term of four years imprisonment.

On June 2, 1987, the United States Department of Justice Immigration and Naturalization Service issued defendant an “order to show cause, notice of hearing, and warrant for arrest of alien” that alleges he is subject to deportation from the United States pursuant to Section 1251 (a) (4) of the Immigration and Nationality Act (“INA”), (8 USC 1251 [a] [4]), as a result of his 1975 robbery conviction.

A Suffolk Felony Lawyer said that, defendant now moves to vacate that judgment of conviction pursuant to CPL 440.10 (1) (h) on the grounds it was obtained in violation of the Sixth and Fourteenth Amendments of the United States Constitution and article I, § 6 of the New York Constitution. Defendant alleges that his defense counsel failed to inform him of the immigration consequences of entering a guilty plea, and failed to file a notice of appeal on his behalf. Defendant further alleges that the trial court failed to: inform him of the elements of the crime to which he plead guilty, ascertain whether or not he understood them, determine whether or not he allocated to facts sufficient to support the elements of the crimes charged, conduct a hearing to determine whether or not he was competent to plead guilty, and inform him of his right to appeal. Alternatively, defendant requests that an evidentiary hearing be ordered to determine whether or not the judgment should be vacated.

Published on: May 7, 2014

CPL 440.10 (1)

by Stephen Bilkis

A Queens Criminal Lawyer said that this is an appeal by the defendant from a judgment of the Supreme Court, Queens County, rendered June 11, 1987, convicting him of criminal sale of a controlled substance in the first degree and criminally using drug crime paraphernalia in the second degree, upon a jury verdict, and imposing sentence.

A Queens Drug Crime Lawyer said that, the police officer allegedly purchased a quantity of cocaine possession from the defendant during a planned “buy” operation. Although the drug sale was consummated in one apartment, the police surveillance of the defendant revealed that he entered a nearby apartment to obtain the needed amount of cocaine. Six days after the alleged drug purchase, the police simultaneously raided both apartments pursuant to a search warrant and arrested the occupants, including the defendant. Over defense counsel’s objections, the prosecutor elicited testimony from the undercover officer that when he was in the apartment, the defendant sold a gram of cocaine to another individual. After the charge to the jury was given, defense counsel requested that the Judge issue limiting instructions concerning the evidence of the uncharged drug crime. The application was denied.

Additionally, prior to the charge being given, defense counsel requested that the Judge instruct the jury that a police officer’s testimony is to be evaluated like any other witness. Although the Judge agreed to include such instruction in the charge, he failed to do so. After the charge was given, defense counsel once again asked that the Judge instruct the jury concerning the evaluation of a police officer’s testimony, but the Judge refused.

Published on: May 6, 2014

The court further agrees with the Family Court

by Stephen Bilkis

A Queens Criminal Lawyer said that, in a proceeding pursuant to the Family Court Act article 3, the appeal is from (1) an order of disposition of the Family Court, Queens County, dated December 15, 1987, which, upon a fact-finding order dated November 18, 1987, made upon the appellant’s admission, finding that he had committed an act which, if committed by an adult, would have constituted the drug crime of criminal possession of a controlled substance in the seventh degree, adjudged him to be a juvenile delinquent and placed him on probation for one year, and (2) an order of the same court, dated June 13, 1988, which, upon a fact-finding order dated May 10, 1988, finding that the appellant had violated his probation, placed him with the Division of Youth, Title II, for a period of one year. The appeals bring up for review the denial, after a hearing, of that branch of the appellant’s motion which was to suppress physical evidence.

A Queens Drug Crime Lawyer said that, the testimony adduced at the Mapp hearing supports the Family Court’s denial of suppression of physical evidence. The Police Officer, the only witness at the hearing, testified that on February 13, 1987, he was assigned to a “special post” in Jamaica, Queens, designed “to show presence and to prevent anyone on the streets from making drug or gun sales”. At approximately 1:25 P.M., while standing at the corner of 108th Avenue and 160th Street, he heard two gunshots. He took cover behind a car and observed a cloud of smoke coming from the roof of a building at the corner of 108th Avenue and 159th Street. As he started toward the building to investigate, he was passed by people hurriedly leaving the area of the building, who stated that someone was shooting a gun. When he turned the corner and approached the entrance of the building on 159th Street, he observed the appellant and two other youths in the doorway. One of the other youths pointed at the officer, who was in uniform, and all three fled in different directions. The officer pursued the appellant and reported the direction of the chase over his portable radio. After only a few minutes, during which time the officer never lost sight of the appellant, two uniformed housing police officers apprehended the appellant and placed him against a wall, facing the wall, with his hands over his head. The Officer quickly caught up and patted the appellant’s outer clothing. He noticed a bulge in the appellant’s right front pants pocket which he believed to be bullets. Upon removal of the objects from the pocket, the officer discovered 10 vials of the drug known as “crack”.

The issue in this case is whether the court erred in suppressing the physical evidence obtained against the defendant.