New York

Published on: October 14, 2012

Court Discusses Jury Instruction for Lesser Included Offenses

by Stephen Bilkis

An accused man appeals his conviction for the offense of robbery with a deadly weapon, urging that the trial court erred in refusing to give requested jury instructions on the lesser included offenses of robbery with a weapon, robbery without a weapon, and petit larceny. A New York Criminal Lawyer said the court agrees with his position, reverse the conviction, and remand the case for new trial.

In declining to give the requested instructions, the trial court explained that there was no evidence to support an instruction on any crime other than that charged. The state argues that the lower court’s decision was justified, as the court was not obliged to instruct on any lesser included offense as to which there is no evidence. What the state and the lower court have apparently overlooked, however, is that in any case in which there is sufficient proof of the greater offense to go to the jury, there is inescapably proof of a lesser offense which is necessarily included within the offense charged. The conclusion is self-evident from a reading of the Florida Supreme Court’s seminal decision on lesser included offenses.

The facts reveal that the trial judge, whose order was there reviewed, fell into the same error as the court below by ruling that there was no proof to support a requested instruction that larceny was a lesser included offense to the charged offense of robbery. A New York Criminal Lawyer said in reversing the conviction, the Supreme Court explained that any lesser offense which is an essential aspect of the major offense is a necessarily included offense because the burden of proof of the major crime cannot be discharged, without proving the lesser crime as an essential link in the chain of evidence. Thus, in order to prove a robbery, the state must necessarily prove a larceny as an essential element of the major offense. This is so because every robbery necessarily includes a larceny.

Published on: October 13, 2012

Court Rules on Elements of Petit Larceny

by Stephen Bilkis

By information the appellant was charged in one count with breaking and entering a dwelling with intent to commit a felony, aggravated assault, in violation of § 810.01 Fla.Stat., F.S.A., and in a second count with aggravated assault, in violation of § 784.04 Fla.Stat., F.S.A. a Miami Petit Larceny Lawyer said that, on trial before the court without a jury the defendant was acquitted on the latter charge, and on count one was found guilty of the lesser offense (§ 810.05 F.S.A.) of breaking and entering a dwelling with intent to commit a misdemeanor, to-wit, petit larceny. The defendant appealed from that conviction.

A New York Criminal Lawyer said the husband and his wife owned a residence as tenants by the entireties. They had separated, and he had not resided in the home for more than a year. His wife lived there with their three children. He retained a key to the home. For the purpose of obtaining evidence against his wife, he and the defendant, a private investigator employed by him, entered the home through the front door using his key. While there they placed and secluded an electronic transmitter in the master bedroom, and disassembled the lock to a sliding glass door which separated the bedroom from the outside. Shortly thereafter, on a certain date at 2:20 A.M., the defendant, acting on instructions from him, entered the residence through the unlocked glass door into the bedroom, and secured certain flash photographs of his wife and a man in bed there. It was brought out by testimony of the latter persons that the defendant did not demand or take anything of value from the premises. Their testimony that the defendant had and produced a gun at that time was contradicted.

A New York Criminal Lawyer said that, the trial court concluded the evidence was insufficient to prove aggravated assault, acquitted the defendant of that charge, and did not find him guilty of a lesser included offense thereof. Consistent with acquitting the defendant on the separate charge of aggravated assault, the trial court held that the charge of breaking and entering with intent to commit aggravated assault was not proved, incident to convicting the defendant on the lesser offense of breaking and entering with intent to commit petit larceny.

Published on: October 12, 2012

Court Discusses Specific Elements of Petit Larceny

by Stephen Bilkis

In this criminal case, shortly before 10 p.m. on May 16, 1969, the police were summoned by a neighbor to investigate a breaking and entering at the home of the spouses’ victims. The police officers were the first to arrive at the scene. A New York Criminal Lawyer said the first officer positioned himself at the front door while the other officer entered the dwelling through the back door. Upon entering the dining area of the victim’s home the officer Howell saw appellant, informed him that he was under arrest and ordered him to stop. Nevertheless, appellant fled from the house through the front door where he was apprehended by the other officer. Appellant, who was wearing socks on both hands and holding a screwdriver, was handcuffed and searched but no personal property belonging to the spouses was found in his possession.

A Florida Petit Larceny Lawyer said that, the officer continued his search of the house and apprehended defendant in a bedroom. He had in his possession a Masonic ring, watch and suit coat all of which belonged to the husband victim. Also found in the bedroom was a pillowcase which contained a razor, cigarettes and shaving cream.

A New York Criminal Lawyer said that, at the trial the husband victim testified that the ring and watch were Christmas presents and were cherished by him but no monetary value for the watch; ring or suit coat was ever established. Nor was evidence offered on the value of the personalty in the spouses household. The only evidence of the value of any item in the household was the husband victim’s testimony that $70 was missing from his dresser drawer.

Published on: October 11, 2012

Court Discusses Crime of Petit Larceny in Conjunction with Robbery Charges

by Stephen Bilkis

Appellant was charged by an indictment of committing the crime of robbery. The trial court instructed the jury on robbery and on the lesser offense of attempted robbery and, in so instructing advised the jury that it could bring in one of three verdicts: 1) not guilty, 2) guilty of robbery, or 3) guilty of attempted robbery. A New York Criminal Lawyer said the appellant’s trial counsel specifically requested the trial court to instruct the jury on the lesser included offense of assault with intent to commit robbery, aggravated assault, and petit larceny, upon the theory that such offenses are within the dictates of the Supreme Court’s previous decision.

In rejecting the foregoing request, a New York Criminal Lawyer said that, the trial court observed: I find it difficult to believe that a jury could logically and legitimately determine that assault with intent to commit the crime, aggravated assault or petit larceny could in this instance, In view of the proof shown, be considered lesser offenses. Now it is the interpretation of this Court of the Brown Decisions and the Decisions that the Court, of the Supreme Court of Florida, in the Gilford Case expressly overruled those portions of those decisions wherein the Court has mandated to charge on all lesser included offenses, and left it to the point wherein Only when there was proof submitted that would enable the jury to determine guilt of a lesser offense should the Court charge on it.’

The issue in this case is whether the trial court erred in its decision.

Published on: October 10, 2012

Court Decides Whether to Issue Writ of Heabeas Corpus

by Stephen Bilkis

Appellant, who was petitioner below in a habeas corpus proceeding, seeks reversal of an order of the trial judge denying the writ and remanding him to the custody of the appellee, Custodian of the Florida State Prison. The point for determination on this appeal is the legality of the sentence of the appellant in view of the apparent inconsistencies between Section 811.301, Florida Statutes, F.S.A. and Section 817.01, Florida Statutes, F.S.A.

A Franklin Criminal Lawyer said that, appellant was informed against in the Circuit Court for Franklin County by an information in two counts, reading in part as follows: Appellant, did then and there designedly by false pretense, and with intent to defraud, obtain from another person property, to-wit: $10.00, $10.00, and $5.00 from a certain individuals by promising to heal their illness and infirmities and then absconding with their money, knowing that his promises to heal were false. Second Count: A New York Criminal Lawyer said the appellant did then and there practice the healing art without first having obtained a certificate or proficiency in the basic sciences, by professing to heal a certain individuals for the sum of $10.00, $10.00 and $5.00.

Upon arraignment, a Franklin Criminal Lawyer said that, appellant pleaded guilty to the offense condemned by the first count and the second count was nolle prosequied. On September 26, 1955, he was sentenced to five years imprisonment in the State Prison under the first count of the information. When he began serving the sentence does not appear from the record. On March 26, 1956, appellant, without benefit of counsel, filed in the Circuit Court for Union County his petition for writ of habeas corpus contending that the information pursuant to which he was convicted was defective and that he had been denied counsel as well as a trial by jury. After hearing the matter, the Circuit Judge on April 14, 1956, found that the questions raised by the petition were not sufficient to justify the issuance of the writ of habeas corpus. A New York Drug Possession Lawyer said that, the Judge thereupon denied the writ and granted to the appellant the right of appeal. Reversal of this order denying the writ is sought by this appeal.

Published on: October 9, 2012

Defendant Submits a Nolo Contendre Plea

by Stephen Bilkis

In this sex crime case, by an Information, the State of Florida charged that, on October 1, 1997, petitioner, who was 18 at the time, violated former Florida Statutes § 800.04(3) by committing an act of Sexual Battery as defined in Florida Statutes § 794.011(1)(h) upon a child under the age of 16. A New York Sex Crimes Lawyer said that, petitioner entered a plea of nolo contendere to the charge for which the court withheld adjudication, and the court entered an “order of supervision” placing petitioner on “sexual offender probation” for four years. In March 2001, the Florida court granted a defense motion to terminate petitioner’s probation and petitioner was thereafter required to register as a sex offender under Florida Statutes § 943.0435, Florida’s version of SORA.

Prior to moving to New York, petitioner sent a letter to the New York State Division of Criminal Justice Services (DCJS) informing it that he was required to register as a sex crime offender in Florida and the he intended to move to New York by February 8, 2006. DCJS thereafter sent petitioner sex crime offender registration form, which petitioner executed and returned. After receiving this form, the Board, in a letter determined that petitioner was a sex crime offender required to register under SORA, and upon the recommendation of the Board, the court determined that petitioner’s Final Risk Level Determination was level 1.

A New York Criminal Lawyer said that, petitioner commenced an Article 78 proceeding to vacate the Board’s determination that he was required to register as a sex crime offender under SORA. In a decision the court determined that petitioner was entitled to a hearing to determine whether petitioner was properly served with the Board’s notification letter informing him that he was subject to the registration requirements of SORA. Rather than proceed with such a hearing, the Board, stipulated that it would recommence the registration process and “re-issue a final determination.” Thereafter, the Board issued a new determination informing petitioner that he was required to register under SORA because he had been convicted of sex offense as set forth in Correction Law § 168-a.

Published on: October 9, 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 Drug Crime 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 9, 2012

Defendant Charged with Drug Possession

by Stephen Bilkis

A New York Criminal Lawyer said in this drug offense case, defendant was found in his apartment with 6¼ grams of heroin about twenty to thirty minutes after a package containing 13 grams of heroin was delivered by mail to his apartment. Customs and postal inspectors had discovered the heroin in the package when it had arrived in the country at San Francisco. The package was mailed from Thailand and addressed to defendant’s residence in Daytona Beach, Florida. The postal authorities arranged a controlled delivery of the package to defendant’s residence.

A New York Criminal Lawyer said that, about twenty to thirty minutes after this controlled delivery had taken place, four officials, one a postal inspector, and another a customs agent, and the other two, Daytona Beach police detectives, entered defendant’s apartment under a valid search warrant. They found defendant in a bedroom with 6¼ grams of heroin on a coffee table in front of him. They conducted a search to find the remaining heroin. During this search, they found thirty packets of heroin, each wrapped in aluminum foil and containing a mixture which included approximately one milligram of heroin, in a drawer of a dresser in a bedroom across the hall from the room where defendant had been found. It was established at trial that these “dime bags” small packets wrapped in aluminum foil containing about one milligram of heroin are commonly used in passing heroin on the streets. The authorities also found some butts of marijuana cigarettes in the same bedroom drawer.

While the authorities were searching the apartment, defendant remarked to them, referring to the thirty “dime bags”, “I bet you didn’t think I could package it up that quick”.

Published on: October 8, 2012

Defendant Claims there is Insufficient Evidence for a Drug Possession Charge

by Stephen Bilkis

The defendant’s convictions arose from a series of drug transactions which began when a certain person contacted another person and informed the latter that he had heroin for sale. The former was unaware that the latter was a confidential informant for the Drug Enforcement Administration (DEA). A New York Criminal Lawyer said the parties and co-defendant agreed that the former would sell the informant 25 ounces of heroin for $6,000 per ounce. While the co-defendant was in Mexico he ran into the defendant who offered to drive him to Texas. He agreed and the two men drove to the border. As they approached the border the co-defendant told the defendant that he wished to walk across the border and would meet the defendant on the United States side. The defendant drove the vehicle across the border while co-defendant walked across carrying the one gram sample of heroin.

A New York Drug Crime Lawyer said that, the defendant and his co-defendant drove to the informant’s apartment where they met the informant and an Agent outside the apartment. The defendant and the Agent remained outside in their respective vehicles while co-defendant and the informant went inside. When the two men left the apartment the Agent saw co-defendant hand informant a piece of paper later found to contain .12 grams of heroin. The informant gave the paper to the Agent. Co-defendant, the informant and the Agent then discussed the purchase of a test ounce and the full 25 ounce shipment. The defendant drove the co-defendant to another apartment where he met with the certain John doe while the defendant remained outside in the vehicle.

Later that evening co-defendant and the informant took one ounce of heroin to the Agent’s motel room and sold it to him for $5,000 cash. Co-defendant returned to Mexico where he processed the remaining ounces of heroin. The defendant came into the apartment while this processing was being done. A Nassau County Drug Possession Lawyer said the next morning co-defendant secreted heroin in the stereo speaker of his vehicle. After doing so he asked the defendant for help in replacing the screws. The two men then drove to the informant’s apartment in the United States. While en route into town co-defendant advised the defendant that what he was doing was not honest and that he should not get involved in similar “deals”. When co-defendant and the defendant arrived at the informant’s apartment the defendant carried the heroin into the apartment. Later the three men left for the Agent’s motel with the defendant driving. Co-defendant, believing they were being followed, directed the defendant to return to the informant’s apartment. Co-defendant and the informant then drove to the Agent’s motel to deliver the heroin and the defendant left. Co-defendant was arrested as he delivered the heroin to the Agent. Defendant was arrested near Hidalgo, Texas.

Published on: October 8, 2012

Man Receives Life Sentence for Distributing Heroin

by Stephen Bilkis

In this drug offense, petitioner was a 21 year old heroin addict. On September 18th, two agents of the Sheriff’s Department of Louisiana, accompanied by a paid informant, and encountered petitioner. Aware of petitioner’s addiction, they asked him whether he had any heroin. He answered that he did not but agreed to “score a bundle” for them. This jargon describes the purchase of 25 packets of individual doses of heroin, a retail transaction. Petitioner telephoned his “connection” (i.e. his supplier), the agents provided the funds to enable him to make the purchase and he left to accomplish the transaction. He returned with 22 packets. The agents took 19 and allowed him to retain three.

Some months later, a New York Criminal Lawyer said that petitioner was arrested, tried and convicted of distributing heroin. Petitioner testified at trial. He did not deny the facts set forth above, but contended that he was entrapped. He admitted that his addiction required five to six packets of heroin each day, but he was not able to afford that much. He paid $10 to $12 per packet. He was employed as a carpenter earning $3 per hour, but he did not work steadily. He admitted that he had previously been convicted of two felonies, burglary and theft by fraud. His wife testified that, while she also worked, her husband was a good provider for her and their one child. A New York Criminal Lawyer said that petitioner was sentence to life imprisonment without parole for distributing heroin.

The issue in this case is whether petitioner’s sentence is grossly disproportionate to his crime as to contravene the Eighth Amendment’s prohibition of cruel and unusual punishments.