New York

Published on: October 22, 2012

Court Discusses Mental Hygiene Law

by Stephen Bilkis

The complainant brought this action to recover damages for injuries he claims to have suffered as a result of being knocked down as he attempted to board a bus operated by the accused. At the time of jury selection, the complainant moved to preclude the accused from offering evidence of or in any way calling the jury’s attention to the facts of the complainant’s incontestable past use of heroin and his current participation in a methadone treatment program. A New York Criminal Lawyer said at the jury coordinating part, the judge determined that the accused would be precluded from any reference to the complainant’s current use of methadone or his participation in the treatment program. He reserved to the trial judge the issue of whether the complainant’s past use of heroin was admissible in the liability phase of the trial.

Following jury selection and prior to opening, the court granted the balance of the complainant’s motion and precluded the accused from mentioning or offering any evidence of the complainant’s past use of heroin. Given that there is a paucity of reported case law regarding the admissibility of such evidence in civil proceedings, the court files the decision to memorialize its opinion.

A New York Criminal Lawyer said the motion does not question whether a complainant’s use of heroin is admissible in the damages phase of a civil trial where the jury is assessing a variety of health and life issues relating to the complainant, such as life expectancy. In that context, with an appropriate foundation, testimony regarding the complainant’s heroin use would surely be admissible. Nor is it about whether the complainant was under the influence of heroin at the time of the accident so that his powers of perception or recollection might actually have been impaired by his heroin habit; nor whether the complainant was under the influence of heroin at the time of his testimony. The use of heroin by the complainant in those circumstances would be admissible even in the liability phase to impeach his credibility as a witness. Indeed, in all of those situations, proof of heroin use and addiction even by extrinsic evidence would be proper. The lone issue decided by the court on the branch of the motion reserved to it was whether the complainant’s past use of heroin was admissible as an act of moral depravity offered only to attack his credibility as a witness.

Published on: October 20, 2012

Court Discusses Elements of Grand Larceny

by Stephen Bilkis

On the night of the accident, a city police officer, while in his patrol car, stopped a man’s automobile in the area where the breaking and entering had occurred. An officer with the sheriff’s department saw a record player, a record player stand, assorted women’s clothing, and a rifle in the rear of the man’s vehicle. After the man was arrested, he tried to hide some cuff links, a watch, a ladies’ wrist watch, and other items.

The victim, whose home was broken into, identified several items in the man’s automobile that had been stolen from her home, including a white sweater, a three-piece suit, a stereo, and a watch. She estimated the value of the said items.

A New York Criminal Lawyer said the man was tried for and convicted of the crime of breaking and entering with the intent to commit grand larceny. But appealed from the decision and sentence based upon a jury verdict.

Published on: October 20, 2012

Court Decides if 3 Petit Larceny Convictions Amounts to a Felony

by Stephen Bilkis

In this case, the Appellant sought review of the sentences imposed based upon inaccurate sentencing guidelines scoresheet, and a written probation order that included a condition which was not pronounced orally at the sentencing hearing.

The court reversed the sentence imposed and remanded the case for resentencing.

A New York Criminal Lawyer said the predicate offenses, kidnapping and armed robbery with a weapon, were committed June 8, 1990. The guidelines scoresheet used at sentencing shows a total of 316 points, for a recommended sentencing range of twelve to seventeen years, and a permitted sentencing range of nine to twenty-two years. The trial court imposed a sentence of twenty years on the kidnapping conviction, and a probationary term of twenty years on the armed robbery with a weapon conviction. The probation was to be served consecutively to the kidnapping sentence.

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 19, 2012

Court Discusses Impeachment with Evidence of Prior Conviction

by Stephen Bilkis

This case is about an appellant who was adjudicated guilty, after a jury trial, for inciting a riot under Section 870.01(2), Florida Statutes (1981). Appellant argued that the evidence presented by the prosecution was insufficient to support his conviction. Although the sufficiency of the proof presented a close question, after thorough review, the court held that the State did present a prima facie case and that a judgment of acquittal was not required.

A New York Criminal Lawyer said the case however was reversed on the ground of evidentiary rulings as to prior convictions. The question concerns the impeachment of appellant under Section 90.610, Florida Statutes (1981), on the basis of two prior petit larceny convictions. The trial court ruled that these prior petit larceny convictions could be used for impeachment purposes and threatened to hold appellant in contempt if he took the stand and testified that he had not been convicted of a crime. Appellant did testify and on direct examination stated he had been convicted of a crime twice.

The old rules on Evidence provide that a witness was subject to being impeached with evidence of a prior conviction of any crime, excluding violations of a municipal ordinance. Jurisprudence prior to the amendment of the rules established that “a crime is a crime”. The argument that discrediting crimes must involve moral turpitude was expressly rejected.

Published on: October 18, 2012

Defendant Says Court Failed to Instruct the Jury Properly

by Stephen Bilkis

Appellant was charged with and convicted of robbery of property having a value of less than $100. He raises four points on appeal, one of which requires discussion and reversal. A Palm Beach Petit Larceny Lawyer said that, although the evidence presented at trial would have supported a conviction of petit larceny, appellant’s request for a jury instruction on that crime was denied. In a 1979 case, the Court held that larceny is necessarily included in the crime of robbery and that it is legally impossible to prove robbery without proving larceny.

The issue in this case is whether appellant is entitled to the reversal of his conviction for robbery.

The Court held that the Florida Rule of Criminal Procedure 3.510 expressly requires the trial court to charge the jury on any offense which is necessarily included in the offense charged. Appellee concedes it was an error not to do so, but argues the error was harmless. The Supreme Court held that it is reversible error per se not to instruct on the next immediate lesser included offense, while it may be harmless error not to instruct on an offense two steps removed from the offense charged. In reference to the charge sub judice “the determination of whether the refusal to instruct on larceny was reversible error would depend upon an application of the case to the facts of what transpired in the trial court.” Here, a New York Criminal Lawyer said there was neither charge nor evidence of property having a value of $100 or more. Consequently, petit larceny was the next immediate lesser included offense and the trial court committed reversible error when it failed to instruct on said crime.

Published on: October 18, 2012

Court Discusses Elements of Petit Theft

by Stephen Bilkis

This case is about an appeal filed by a juvenile from an adjudication of delinquency for robbery and a subsequent commitment to the Florida Department of Health and Rehabilitative Services.

A New York Criminal Lawyer said the central question presented for review is whether the state established a prima facie case that the respondent juvenile employed force, violence, assault or putting in fear–an essential element of robbery–in effecting a theft of jewelry from a three-year-old child.

The respondent was charged in a petition for delinquency before the Circuit Court for the Eleventh Judicial Circuit with the offense of robbery.

Published on: October 17, 2012

Appellate Court Agrees Prejudicial Error Committed at Trial

by Stephen Bilkis

In this criminal case, defendant was convicted by a jury on three counts of willful attempt to evade or defeat his federal income tax due for the years 1970, 1971 and 1972, in violation of 26 U.S.C. § 7201. He was sentenced to one year imprisonment on each count, the sentences to run concurrently, and a $5,000 fine on each count. A New York Criminal Lawyer said the issues raised by defendant on appeal can be grouped into three categories: (1) government misconduct before the grand jury; (2) Jencks Act material; and (3) introduction of a 16-year-old military conviction for larceny.

The issues in this case are whether the issues raised by the defendant on his appeal that was grouped into three categories have merit.

The Court held that it finds no merit to the claims under the first two headings but concludes that it was prejudicial error to admit the military conviction into evidence. We reverse and remand.

Published on: October 16, 2012

Appellant Claims Statute of Limitations Had Run

by Stephen Bilkis

In this case, the Appellant raised on appeal his conviction on charges of conspiracy to commit a felony, to wit: grand larceny; and petit larceny. He was initially charged by information with grand larceny, conspiracy, and several counts of forging and uttering uniform air bills.

A New York Criminal Lawyer said the first information, filed on June 1, 1977, alleged that the offenses occurred between November 30, 1975 and June 14, 1975. The State filed a second information in open court on November 3, 1977, without objection from the defense counsel and with court approval. Thereafter, the appellant moved to dismiss the information on the ground that it had not been filed within the two-year Statute of Limitations. His motion was denied.

The informations alleged that Appellant was operating a kickback scheme with another person who worked for a company that provided air trays and livery service for transporting bodies by plane. A New York Criminal Lawyer said the accomplice entered a nolo plea to similar charges and turned State’s evidence. During the trial, he testified that he made out false air bills with information given to him by Appellant, inflating the shipment costs. After the company paid the bill, the accomplice claimed that he delivered the excess money to appellant either in person or through a jointly held safety deposit box.

Published on: October 15, 2012

Appellate Court Reverses Grand Larceny Charges

by Stephen Bilkis

In this case Appellant, defendant below, filed this appeal from a final judgment of conviction and a sentence of three years probation entered pursuant to a jury verdict finding him guilty of two counts of grand larceny. Our review of the record reveals that appellee, the prosecution below, did not show, as set forth in the information, that the property at the time it was stolen had a fair market value of $100 or more. Accordingly, a New York Criminal Lawyer said the judgment and sentence entered below are reversed and the cause is remanded with directions to the trial court to enter judgment and sentence on the lesser included offense of petit larceny.

Appellant was charged, by information, with three counts of grand larceny. The trial court granted a directed verdict of acquittal as to one of these counts. The remaining counts charged appellant with unlawfully and feloniously stealing hubcaps, valued at $100 or more, from the lawful custody of its owner. A New York Criminal Lawyer said pursuant to a three day trial, the jury returned a verdict of guilty on these two counts. Thereafter, the trial court entered a final judgment of conviction and a sentence of three years probation from which appellant brings this appeal.

Appellant contends that appellee failed to prove by competent substantial evidence, as to one of the counts, the ownership of the stolen property and, as to both of the counts, that the fair market value of the property was $100 or more at the time it was stolen.