New York Criminal Lawyer Blog

Published on: July 25, 2013

Collateral estoppel means simply that

by Stephen Bilkis

Petitioners seek to prohibit the District Attorney of Kings County and certain Justices of the Supreme Court from prosecuting them under two indictments pending in said county. The Appellate Division has dismissed the proceeding.

A Kings County Criminal attorney said that under Queens County indictment, petitioners were indicted for various counts of grand larceny in the second degree, criminal possession of stolen property, robbery, in the first degree and unauthorized use of vehicles, as well as for one count of possession of burglar’s tools for burglary and one of conspiracy in the third degree, all alleged to have been committed. They were also indicted under Kings County indictments which contained a number of counts for said crimes of grand larceny, criminal possession and unauthorized use perpetrated during the same period. The Kings County counts do not coincide in all respects with those in the Queens indictment. Petit Larceny was not charged.

The petition recites: ‘we were subsequently arrested and arraigned in Kings County Criminal Court the arrests again being made and the cases based on the same facts and circumstances as the Queens cases.’ The brief of the People states: ‘Respondent has always conceded that the automobiles and complainants involved in the Kings County charges are the same as those involved in the Queens County Indictment’ and ‘the District Attorney of Kings County has continually stipulated as to the similarity of the instant indictment, thus never initiating a factual disparity between the separate charges.’

Published on: July 25, 2013

Two counts of grand larceny are dismissed

by Stephen Bilkis

Defendant was indicted for the crimes of robbery in the second degree, grand larceny in the second degree, grand larceny in the third degree and burglary in the third degree. In substance it was alleged that he and a male confederate (not apprehended) accosted the complaining witness on a Brooklyn street. Between them the two men perpetrated the confidence game of ‘finding’ money in the street and offering her a share of it if she would put up some money of her own as evidence of good faith.

A Kings County Criminal lawyer said that the complainant testified at the trial that defendant told her she would have to give them (the two men) $2,500 ‘to make us know that you won’t tell anybody’ that they had found the money and ‘for your own safety.’ In due course she was persuaded to allow them to accompany her to her apartment. There she obtained her savings account passbook. With the two men still accompanying her, she proceeded to her bank, from which she withdrew $2,500 and she handed it over to the two men in a car parked nearby. She testified that she refused to accept a share of the ‘found money’ which, of course, was nonexistent. She expressed fear for her safety at the hands of the two men had she not complied with their demand.

At the conclusion of the People’s case, and on motion of the defense attorney, the trial court dismissed the two counts of grand larceny and the one count of burglary. In dismissing the larceny counts, the court commented that it was doing so only ‘because of failure of pleading’ and, further, the court remarked that ‘the pleading should have been that grand larceny was committed by extortion.

Published on: July 24, 2013

The Court is comfortable that the record presented supports the finding

by Stephen Bilkis

In this case, the petitioner (hereafter “the landlord”) is the owner of the residential real property premises. The landlord owns nineteen separate residential rental houses and now operates twelve rental units as boarding houses for United States Veterans. In these houses each tenant leases a single bedroom and shares common areas of the house with numerous other veteran/tenants. The parties to this action executed a one year written lease wherein respondent was granted occupancy of a bedroom. The cost to the tenant was $500 per month. The lease contains a rider which refers to “house rules” which govern tenants behavior and which prohibits their alcohol and non-prescription drug use. The subject premises was occupied by at least five veterans in June of 2006.

A Suffolk County Burglary attorney said that though only two such veterans testified in the context of this trial, the Court is cognizant of three other veterans who were recently dispossessed from the subject premises following their entry into stipulations filed with this Court, in other eviction proceedings instituted by petitioner. Contrary to paragraph #’s 6 and 53 of the lease, the petitioner did not pay the water bill at the premises which resulted in an interruption of service. The veteran tenants of the facility thereafter had to place the water utility in their name and pay the charges for same. The electric utilities were in the landlord’s name when the respondent took occupancy. The initial practice between the parties was for each tenant to pay his proportionate electric bill share to the landlord in cash, who would then pay the bill to the electric authority. No arson or domestic violence was involved.

In February 2006, the landlord refused to pay the electric bill and said utility was turned off. Several days thereafter, the electricity was restored after a local charity paid the bill for the veterans. It is a disputed fact as to whether the respondent/veterans paid the $800 electric bill in cash to the landlord. A large menacing man moved into an accessory structure on the lease premises in May 2006. He engaged in open crack cocaine use and in harassing and menacing behavior towards the veterans which resulted in the police being called on at least four occasions by the respondent and other veterans. It is disputed as to whether this man had the permission of the landlord to reside on the premises. The landlord averred at trial that he was a trespasser.

Published on: July 24, 2013

The defendant contends ‘there was a 14-month delay

by Stephen Bilkis

In November 1963, the defendant having theretofore pleaded guilty to the crime of attempted robbery in the third degree, unarmed, was sentenced to State Prison for a term of not less than 2 1/2 to 5 years. The defendant filed a notice of appeal from the judgment of conviction.

Thereafter, he moved in the Appellate Division to reverse the criminal judgment of conviction or, in the alternative, to remand the action to the trial court for a hearing to determine whether he was denied due process and his right to a speedy trial. By order, the motion, upon the consent of the district attorney, was granted ‘to the extent of remanding the action to the trial court for a hearing and determination on the issue of appellant’s contention that he was denied due process and his right to a speedy trial.’ In all other respects the motion was denied.

A Kings County Grand Larceny lawyer said that a hearing was held at which it was developed that indictment was filed charging the defendant and two co-defendants with robbery in the first degree, assault in the second degree and grand larceny in the first degree. Thereafter, he was arraigned and pleaded not guilty. The defendant moved for an inspection of the grand jury minutes which was denied by an order. The case was marked off the calendar because of another motion which was then pending and was was adjourned later at the request of the defendant. The case was marked ready and passed subject to the completion of the trial of the defendant and the same co-defendants, upon a robbery indictment in the Supreme Court, Queens County.

Published on: July 24, 2013

The complainant however indirectly asserts that the sufficiency of the accusatory instrument is at issue

by Stephen Bilkis

The complainant commenced an action by filing information that accuses a man of sexual abuse in the second degree. The complainant and a detective, attests that the man did enter the bedroom of the mentally retarded 16 year old female and did expose his erect penis. The man did allegedly take the victim’s hand in his own and put the victim’s hand on his erect penis and did masturbate himself.This is a sex crime and a criminal act.

The source of the said information and the basis of the belief are the interview and statement of the victim and the interview and statement of admission of the man

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Published on: July 24, 2013

Current sentence must be vacated

by Stephen Bilkis

A man pleaded guilty to criminal possession of a weapon in the third degree and was sentenced to six months imprisonment concurrent with five years probation.

After three years, the man was arrested for robbery in the first degree and other charges. After a year, he pleaded of guilty to attempted robbery in the second degree and was sentenced as a second violent felony offender to three to six years. The sentence was ordered to run consecutively to an undischarged sentence. He also pleaded guilty to attempted criminal possession of a weapon in the third degree and had been sentenced to two to four years in prison as a second violent felony offender.

After four years, the man was again arrested for attempted murder in the second degree. The following year, he pleaded guilty to attempted criminal possession of a weapon in the third degree. The man was evaluated a persistent violent felony offender and was sentenced to two years to life. The sentence was ordered to run concurrently with the previous undischarged sentences imposed in two different county cases.

Published on: July 23, 2013

Accordingly, the court held that the judgment is modified

by Stephen Bilkis

A Suffolk Criminal Lawyer said that, appeal by the defendant from a judgment of the County Court, Suffolk County, rendered October 21, 1987, convicting him of criminal sale of a controlled substance in the first degree (two counts) and criminal possession of a controlled substance in the second degree (two counts), upon a jury verdict, and imposing sentence of an indeterminate term of 15 years to life imprisonment on the conviction of criminal sale of a controlled substance in the first degree under counts one and three, 8 1/3 years to life imprisonment on the conviction of criminal possession of a controlled substance in the second degree under count two, and 5 years to life imprisonment on the conviction of criminal possession of a controlled substance in the second degree under count four, the sentences under counts one and two to run concurrently to each other and the sentences under counts three and four to run concurrently to each other but consecutively to the sentences imposed under counts one and two.

A Suffolk Cocaine Possession Lawyer said that, in another case, defendant appealed from a judgment of the County Court, Suffolk County, rendered December 12, 1995, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and resisting arrest, upon a jury verdict, and sentencing him to concurrent indeterminate terms of 12 1/2 to 25 years imprisonment on the convictions of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and a concurrent term of one year imprisonment on the conviction of resisting arrest.

The issue in this case is whether the sentence imposed by the court in this criminal case is excessive.

Published on: July 23, 2013

In rem forfeitures such as these continue to exist on the federal and state levels

by Stephen Bilkis

In this criminal case, petitioner filed a motion seeking an order granting a preliminary injunction pursuant to CPLR 1333, enjoining the defendant from directly or indirectly effecting or furthering the sale, gift, transfer, pledge or mortgage of money not to exceed $10,000 held by European American Bank and Nassau County Police Property Bureau, and from taking any other action otherwise alienating or encumbering his right, title or interest in that property or any part of it.

Previously, an order to show cause, containing a temporary restraining order (TRO) was granted based on the affidavits of the Assistant District Attorney acting for the claiming authority, the arrest officer, the summons with notice, and the District Court Information charging the defendant with committing violations of sections 220.43, 220.18, 220.41, 220.16, 220.16(12) and 220.16(1) of the Penal Law.

A Nassau County criminal attorney said that defendant was personally served at the Nassau County Correctional Center, East Meadow, New York according an affidavit. Defendant has not appeared in this action.

Published on: July 22, 2013

Defendant cooperates to his benefit

by Stephen Bilkis

This is a criminal action wherein, defendant appeals from a judgment of the Supreme Court, Suffolk County, convicting him of criminal sale of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence.

A Suffolk County Drug Possession attorney said that the defendant was charged with one count of criminal sale of a controlled substance in the first degree and one count of criminal possession of a controlled substance in the first degree in connection with the sale of cocaine to an undercover police officer. Later on, after lengthy plea negotiations in which the defendant endeavored to secure the District Attorney’s recommendation for a sentence of lifetime probation, he agreed to plead guilty to the reduced charge of criminal sale of a controlled substance in the second degree in exchange for a commitment to impose sentence of an indeterminate term of three years to life imprisonment, the minimum period of incarceration permitted upon a conviction of a class A-II felony.

During the plea allocution, the defendant admitted that he had, while acting with another, sold a quantity of cocaine in excess of two ounces to an undercover police officer. The defendant’s attorney asked the court to defer formal acceptance of the plea because he wished to have his client continue cooperating with law enforcement authorities, and wanted to leave open the possibility that the District Attorney would recommend a sentence of lifetime probation.

Published on: July 21, 2013

The Attorney General then must decide

by Stephen Bilkis

Complainant is a heart transplant nurse at a certain hospital who sued eight defendants for having allegedly violated the False Claims Act (“FCA”) by defrauding and conspiring to defraud the United States Treasury. She brought her suit under the qui tam provisions of the FCA which allow individual citizens to sue for fraud on behalf of the government and collect part of the government’s recovery. Pursuant to the procedures established in the qui tam provisions, Complainant filed a preliminary statement under seal which the United States reviewed at length. The government eventually decided not to intervene under 31 U.S.C. 3730(b)(4)(B), so complainant proceeded in the district court on her own.

After complainant filed her original complaint, the criminal defendants moved to dismiss under FED. R. CIV. P. 12(b)(6) for failure to state a claim. The district court denied each motion but requested additional briefing to address complainant’s standing under Article III of the United States Constitution. Complainant, the University of Texas Health Science Center at Houston, and the United States as intervenor for the limited purpose of defending the FCA’s constitutionality, briefed the standing issue. Complainant then filed a second amended complaint which was met with another round of motions to dismiss. Among the grounds for dismissal was an assertion by the University of Texas Health Science Center at Houston that the Eleventh Amendment bars complainant from suing it, because it is an arm of the state. The district court dismissed complainant’s claims on jurisdictional grounds, concluding that she had suffered no injury-in-fact and therefore lacked standing to sue. Because the court dismissed on standing grounds, it did not reach the arguments presented in the motions to dismiss, including the Eleventh Amendment defense. Assault was not charged.

On appeal, the defendants maintain that complainant lacks standing, and they assert two other constitutional arguments that they presented to the district court in their motions to dismiss: (1) that the qui tam provisions of the FCA violate the Constitution’s Appointments Clause and (2) that qui tam actions in which the government does not intervene violate the Take Care Clause and the constitutional doctrine of separation of powers. The United States continues its intervention for the limited purpose of defending the constitutionality of the qui tam provisions.