New York Criminal Lawyer Blog

Published on: March 14, 2014

The investigator then approached the man in the parking lot

by Stephen Bilkis

A criminal investigator was assigned to investigate border crimes. He approached a man outside a hotel and asked to speak with him. The investigator had been conducting surveillance of the man since the day before after receiving a tip from an informant. Eventually, the investigator found a bag of what he suspected to be marihuana in the man’s backpack. The tests confirmed it was 15.9 ounces of marijuana. The man was then escorted to his room where his co-offender had been awakened by another agent who was already present in the room. The agents searched the luggage and room. They then found four small bags containing rocks of crack cocaine and cocaine which had an aggregate weight of seven grams was found inside a closed camera bag, which also contained a roll of approximately $500 in cash and the co-offenders identification. The man and his companion were then arrested and read their Miranda rights.

After a hearing, the court denied the offender’s motion to suppress the drugs and other evidence. The court, however, precluded the complainant from introducing any of the offender’s statements to police after the discovery of the marihuana in his backpack. As a result, no Huntley hearing was held.

Sources revealed that prior to the trial the man’s co-offender entered a plea of guilty to criminal possession of a controlled substance in the third degree, the sole count against her, admitting she possessed the cocaine in her camera bag with intent to sell it.

Published on: March 11, 2014

DM appealed the denial with an assigned counsel

by Stephen Bilkis

On 2 September 1998, a first meeting was had between CI and JC. However, CI postponed the transaction. Thus, on 3 September 1998, a second meeting was had and it was where CI met with DM on a Queens Street. DM then told CI to come to his house but CI refused and the two then walked on where they met up with JC who was driving a Maxima. DM allegedly said that the $2M was in the rear seat of this car and both DM and JC asked the “seller”, CI, to enter the vehicle to check out the money. CI refused to do so. DM then removed a suitcase (contents unknown) from the rear seat and placed it in the trunk. Again, CI was asked to inspect the money which was allegedly in the suitcase. At that point, DM and JC each held a semi-automatic handgun, each defendant pulled back the slide of his handgun in order to load a bullet into the chamber, and each defendant then pressed the nuzzle of his handgun against the rib area of the CI, and DM stated, in substance, “Get in the car, or I’ll put one in your side.”

Detective JL, who was in charge of the operation recovered a loaded semi-automatic handgun from the ground where he saw DM throw it and other members of his team recovered a similar weapon from the trunk of the car, which had remained open, where they saw JC throw it.

DM and JC were arrested and charged with Attempted Criminal Possession of Drugs in the First Degree, Kidnapping in the Second Degree, Criminal Possession of a Weapon (a loaded firearm) and Attempted Robbery in the First Degree. DM was held without bail and was later indicted for these crimes.

Published on: March 11, 2014

Hollis Court Boulevard

by Stephen Bilkis

A Queens Gun Criminal Lawyer said that, where an accomplice to a robbery acts solely as the getaway driver and participates in neither the threat of force, its use, nor the taking of property, and is not in the immediate vicinity of the robbery or so positioned as to be capable of rendering immediate assistance to the robber, he is not “another person actually present” within the meaning of the aggravating accomplice factor of robbery, second degree.

A Queens Criminal Lawyer said that, defendant appeals from the affirmance of his conviction, after a jury trial, of robbery, second degree, arising from the holdup of a bank. His chief contention is that the trial court should have granted his dismissal motion, made at the close of the People’s case, upon the ground that there was insufficient proof, as a matter of law, to show that he committed the robbery while “aided by another person actually present”. A divided Appellate Division affirmed, holding, in pertinent part, that a getaway driver “shown to be parked approximately 15 feet from the bank at the time of the robbery” could be considered “actually present” at the robbery, inasmuch as the history of the Penal Law “suggests an elimination” of the distinction between actual and “constructive” presence. For reasons which follow, we agree with the view of the dissenter at the Appellate Division that both the legislative history and the plain meaning of the phrase “actually present” rule out the interpretation that it could include a person who was only constructively present at the crime scene.

The issue in this criminal case is whether aid to a robber by a person who, unseen by and unknown to the victims, is waiting outside in an automobile is a circumstance which the Legislature intended should raise what would otherwise be robbery in the third degree to the crime of aggravated robbery in the second degree.

Published on: March 10, 2014

The statute predicates such a search

by Stephen Bilkis

The issue on this appeal concerns the validity under the Fourth Amendment of a warrantless search of the defendant’s handbag and the seizure of a loaded revolver. After a hearing, the defendant’s motion to suppress the weapon was denied. Thereupon, she entered a plea of guilty to the lesser offense of attempted possession of a weapon and the Appellate Term, Second Department, affirmed the conviction. The court holds on that the motion to suppress was properly denied and, accordingly affirmed the order of the Appellate Term.

While seated in an automobile stopped at an intersection in Queens, the defendant woman was accosted by one man. The man, with whom the defendant woman had been living, entered the vehicle on the passenger side, pushed the defendant’s younger brother aside and grabbed her by the wrist. Brandishing a knife at her throat, he asked where his girlfriend found the car. The defendant woman managed to free herself from his grasp and ran from the vehicle to a nearby police car. She reported that her boyfriend had been harassing her for several days and had just menaced her with a knife. The police then returned to the criminal defendant’s automobile and arrested the man. He told the arresting officer that the defendant was his wife and that she was sick. On their way to the police station, the man told the arresting officer that the defendant had a gun in her possession.

The defendant woman preceded the arresting officer to the police station to file a complaint against her boyfriend. At the police station, the arresting officer confronted her and asked for her handbag, which she surrendered to him. The arresting officer then searched the handbag and found a loaded .22 caliber revolver. Upon showing the revolver to the defendant, she admitted not having a permit for it. Thereupon, she was arrested and charged with possession of a dangerous weapon. It is conceded that when the handbag was searched and the weapon seized, the defendant was not under arrest and the officer did not have a search warrant. Nor is it contended that the defendant consented to the search.

Published on: March 9, 2014

Sentencing and Commitment Order

by Stephen Bilkis

Petitioner commenced a proceeding requesting that the Court vacate the five year post-release supervision (“PRS”) period added to his sentence by the respondent. Petitioner argues that the neither the sentencing minutes nor the Sentencing and Commitment Order include, as part of petitioner’s sentence, a five year PRS term and therefore respondent’s administrative imposition of the five year PRS sentence is invalid.

A Queens County Criminal lawyer said that Petitioner was convicted of two counts of Second Degree Robbery and Attempted Grand larceny in the 2nd degree. Thereafter, the Court sentenced the petitioner to two five-year determinate terms of incarceration for the robbery conviction and a three to six year term on the attempted grand larceny conviction.

Notwithstanding the sentence as set forth in the sentencing minutes of the hearing, in the preparation of the Sentence and Commitment Order, the sentence for the attempted grand larceny conviction was set forth as a two and a third to seven year sentence. Petitioner brought a motion pursuant to CPL §440.20 alleging, among other things, that the sentence on the grand larceny conviction was illegal and had to be corrected.

Published on: March 7, 2014

The police officer testified

by Stephen Bilkis

An offender was charged with one count of criminal sale of a controlled substance in the third degree, one count of criminal possession of a controlled substance in the fourth degree and one count of criminal possession of a controlled substance in the third degree. A hearing was held to determine whether probable cause existed to arrest the offender and whether cocaine alleged to have been recovered from his person is admissible at trial.

A police officer testified that he was employed as a sergeant and supervised a narcotics investigation of cocaine-dealing in the county. As part of the investigation two undercover police officers were used to make purchases of cocaine.

The primary target of the investigation was a man known to the police. Prior to the date of the arrest, approximately five purchases of cocaine had been made by the undercover police officers. The first purchase of cocaine was made by the first undercover police officer directly from the man. The balance of the purchases thereafter was made by the second undercover police officer and involved other individuals assisting the man. The said other individuals acted in various role such as lookouts, distributor of the drug and handlers of currency. The police officer further stated that the man was either present or aware based on phone communications of each of the narcotics transactions.

Published on: March 7, 2014

The Court had reserved decision on the motions

by Stephen Bilkis

A Queens Criminal Lawyer said that, these are motions by defendants, made initially at the close of the People’s case and renewed before submission to the jury, inter alia, to dismiss the first two counts of the indictment for Kidnapping in the First Degree. Although the criminal defendants were acquitted of these charges and the lesser included counts of Kidnapping in the Second Degree, the importance of the issue in relation to the improper conduct by the District Attorney in attempting to foreclose application of the merger doctrine warrants consideration of the motion on the merits.

In the morning hours of September 22, 1992, at about 8:20 a.m., the victims left their home on 112th Street and 68th Drive, in Forest Hills, a quiet, residential street, preparing to go to the subway at Queens Boulevard. One was on his way to work in downtown Manhattan, the other to school at New York University. As the two left their home and crossed the street, they were accosted by five Asian males, with guns and knives, who forced them back into the house.

A Queens Gun Criminal Lawyer said that, once inside, the victim was directed to open the front door, at which point two of the five who had stopped him on the street, entered. He and his mother, were taken to the living room, where they were forced to lay on the floor, his hands bound with a dog’s leash and both covered with a blanket or cover, guarded by three of the intruders, one with a knife and one with a gun, while the other victim was taken by the other two to the basement. They told him to cooperate with us, otherwise we are going to kill all of you.” After he opened the safe, on finding no money, only jewelry, defendant told him, “You play game with me? Want money! Money! If you play games with me I’m going to kill all of you.”

Published on: March 7, 2014

The defendant sought to suppress the gun and marijuana

by Stephen Bilkis

A police officer and a sergeant received two radio reports about a gunpoint robbery involving three black men, two of whom had bicycles. According to the first radio report, the victim, a black man dressed in all white, was waiting for them on the corner of Mott and Central Avenues in Queens County. The second radio report related that a gun was involved in the robbery.

Upon arriving at that location, the police officer observed the defendant, a black male, dressed in white and carrying a white jacket. The police officer exited the car, approached the defendant, asked him if he was okay, and in which direction the perpetrators fled, and asked him to enter the police car to help them canvass the area. Instead of answering, the defendant fled down the block. The police officer, thinking that the defendant was a perpetrator, chased him in his car, and saw him throw a jacket to the ground. He blocked the defendant’s path with his car, wrestled him to the ground, and handcuffed him. The police officer recovered the jacket and felt a heavy object therein which was determined to be a loaded.32 caliber revolver. Upon further search, 20 bags of marihuana were discovered in the defendant’s right jacket pocket. The defendant was charged with criminal possession of a weapon in the third degree and criminal possession of marijuana in the fifth degree.

The defendant sought to suppress the gun and marijuana, and, after a Mapp hearing, the court denied the defendant’s motion. He was convicted of criminal possession of marijuana in the fifth degree and criminal possession of a weapon in the third degree. The defendant contends that the hearing court should have suppressed the gun and marijuana because the police did not have reasonable suspicion to chase him and the property was abandoned as a result of their unlawful pursuit.

Published on: March 5, 2014

United States Post Office

by Stephen Bilkis

The criminal defendant was indicted for possession of a weapon as a class D felony on the charge that he had possessed an operable revolver and a quantity of ammunition and that such drug possession was not in his home or place of business. He was allowed to plead guilty to attempted possession of a weapon as a class E felony in satisfaction of the indictment. He was then sentenced to a six-month term and he was incarcerated until when he was released on bail with the consent of the District Attorney.

The principal question presented is whether the firearm here possessed was in the defendant’s place of business within the exception set forth in Penal Law. Subsidiary questions presented are whether the court’s stated policy at the time of sentence to impose a term of incarceration in such cases was improper in the light of his previous statement, at the time of accepting the guilty plea, that he would make no commitment as to sentence prior to reading the probation report; and whether the sentence imposed was excessive.

The facts are not in dispute. The defendant, an employee, was arrested while on his job in the United States Post Office attached to the John F. Kennedy Airport. Special Police Officer alleged that he had been informed that the defendant was carrying a gun. When the officer approached the defendant, he observed a bulge on his left side and removed there from in holster a .38 cal. revolver. The officer arrested the defendant and, upon a search of his person, discovered five rounds of live ammunition which could be used to discharge this firearm. The defendant had no permit for the gun.

Published on: March 4, 2014

Buffalo traffic lights

by Stephen Bilkis

The claims on which the instant motions are based developed from an automobile accident, when a car driven by the accused struck a vehicle operated by the victim. His wife was a passenger in the vehicle. She died as a result of injuries received in the accident. The gravamen of both claims is that the State, through its agents, or employees, was at least partially and proximately at fault for the accident because the Motor Vehicle Department negligently and without authorization issued a temporary driver’s license to the accused in August 1973 under its experimental DWI Counter-Attack Program in Onondaga County.

A New York DWI lawyer said that after filing the Notices of Claim, Claimant moved for an examination before trial of the District Director of the DWI Counter-Attack Program; for the discovery and inspection of various State documents; and, for permission to correct the date of the occurrence of the accident. The State then filed a cross-motion to dismiss both claims, alleging that they failed to state a cause of action and that the Court lacked jurisdiction over the subject matter.

Both counsel provided the Court with briefs and factual evidence through affidavits. The Court considers and weighs evidence submitted with or in opposition to a motion to dismiss. Courts utilize two standards for deciding motions to dismiss for failure to state a cause of action depending on whether or not extrinsic evidence is offered with the motion. If no evidence is presented, the Court construes the pleading liberally and presumes that the DUI allegations pleaded are true. The sole question is whether the pleading states a cause of action. However, if evidence is offered, as was the case herein, the test used is not whether the pleading states a cause of action but whether a cause of action exists.