New York

Published on: May 3, 2012

Shoplifting Defenant Arrested Based on her Own Admission

by Stephen Bilkis

The appellant of the case is Alma Davis. The appellee in the case is McCrory Corporation. The case is being heard in the second district of the District Court of Appeals in the State of Florida.

Appeal

A New York Criminal Lawyer said Alma Davis, the appellant, was accused and then arrested for shoplifting in one of the McCrory Corporation’s stores. She was acquitted of this crime. She then brought a lawsuit into action claiming malicious prosecution, false imprisonment, and false arrest. She is appealing the decision by the district court that granted a summary judgment in favor of the defendant that dismissed the case.

Published on: May 3, 2012

Defendant Appeals Sentence

by Stephen Bilkis

A New York Criminal Lawyer said the plaintiff and appellee of the case is the United States of America. The defendant and appellant of the case is Paul Darvin Lamm. The case is being heard in the Fifth Circuit of the United States Court of Appeals.

Appeal

Paul Darvin Lamm, the defendant has been convicted and sentenced for a previous crime. The crime that is currently in question is a guilty plea to being a user of a controlled substance and possessing a firearm. This is referred to as the instant offense. His appeal is only in regard to his sentencing. He is contesting that the petty theft shoplifting charge not be included when determining his criminal history points for calculation of his prison sentencing. This appeal brings into question whether or not an offense of petty theft is similar to an insufficient funds check, which is excluded from an individual’s criminal history report under a set of specific conditions.

Published on: May 3, 2012

Court Discusses Discrimination of Domestic Violence Victims

by Stephen Bilkis

The complainant woman was hired by the City Department of Correction and was subject to a two-year probation period. A New York Criminal Lawyer said she is the mother of two pre-teenage children and a victim of abuse by her crack and alcohol addict husband who also happens to have a criminal history. The woman moved out with her children and went to live with a relative. Things did not work out and she was ejected from the apartment. The woman requested a vacation time to find a home and was granted a leave through April 4, 2002.

On April 5, 2002, the still homeless woman asked the Department’s Health Management Division (HMD) for further time off to continue her search for a place to live. The Health Management Division put her on immediate sick leave due to stress. They also confiscated the woman’s identification and directed her to obtain a new one which reflected she was psychologically unfit to carry a firearm. At that same meeting, the Health Management Division demanded that the woman provide them with an address. When the woman told the Health Management Division that she was homeless and lacked an address, she was told she could not work at the Department without one. Faced with the threat even after she had explained her homelessness, she gave her husband’s address.

The Health Management Division conducted a visit to the woman at her husband’s address. When she was not found there, they required her to appear at the Health Management Division the following day to explain her unauthorized absence from home. A New York Criminal Lawyer said the woman was informed by her mother-in-law the woman appeared at the Health Management Division and at their request wrote a report explaining her circumstances and homelessness. Nonetheless, the Health Management Division made four subsequent visits to the husband’s residence expecting to find the petitioner there. The petitioner remained homeless, sleeping variously in her car, hotels, shelters or friends’ homes. The woman did return to her husband’s home twice, but both times he assaulted her and she had to seek police intervention and leave again.

Published on: May 1, 2012

Court Discusses Indeterminate Sentencing

by Stephen Bilkis

In New York, prior to January 13, 2005, it was common for people convicted of Class B felony drug crimes to be incarcerated with indeterminate sentences. A New York Criminal Lawyer said the trend at the time was to be tough on drug offenders by putting them in prison with no expectation of a final release date. In January of 2005, new trends and research into the problems presented by indeterminate sentences, caused New York lawmakers to rethink their policy. Class B felony drug crime offenders stopped getting indeterminate sentences. Since, the prisons were overrun with Class B felony drug crime offenders who had indeterminate sentences, CPL 440.46 was created to alleviate the problem. It states that any person who has been convicted of a Class B felony drug crime under article 220 of the Penal Law that was committed before January 13, 2005 might be eligible for resentencing under the new sentencing guidelines that did not include indeterminate sentences. They must have a maximum of more than three years to be eligible. The intent originally was to reduce the number of drug offenders on the streets. The problem with indeterminate sentences is that offenders behave worse when they do not have the hope of a definite end. The large number of drug offenders that were incarcerated was putting a strain on the system and taking space that was needed to house violent offenders. Sometimes, political notions of how to combat crime cause more problems than they solve. Indeterminate sentencing was one of those notions. The sentences were so severe that they were out of sync with the rest of the sentencing guidelines for other offences. Often, drug offenders received harsher sentences than violent offenders. There were other problems with the idea of indeterminate sentences that must be addressed by the New York legal system. A New York Sex Crimes Lawyer said one way is to go back through all of the cases where offenders are facing more than three years of an indeterminate sentence, and allow them to apply for resentencing under the new guidelines. In most cases, approval for resentencing means release into a drug treatment program and probation. There are exceptions to these resentencing guidelines. If a person was convicted in the ten years preceding this conviction with any violent felony offense described in section 70.02 of the penal law or any offense for which a merit time allowance is not available, then they are not eligible for resentencing under the new guidelines.

This ten-year period is figured from the date of the person’s resentencing motion and not from the date that he committed the present drug crime. A New York Criminal Lawyer said in one case, a man applied for resentencing under the new guidelines in October 2009. He had been convicted in March of 1984 for manslaughter in the first degree. Manslaughter in the first degree is a class B violent felony, which would otherwise make him ineligible for resentencing. He was also convicted in July of 1995 with manslaughter in the second degree which is an offense in which merit time allowance is not allowed. However, because both of these convictions occurred prior to the ten-year period from 2009, they do not disqualify him from resentencing pursuant to CPL 440.46. Under the ten-year look back policy, this offender’s history before 1999 cannot be considered in order to disqualify him from obtaining resentencing to remove his indeterminate sentence. Additionally, he was sentenced to an indeterminate sentence that would last more than three years which does qualify him for resentencing under the new guidelines. This matter was remitted back to Queens County Supreme Court for new proceedings and a new determination of the motion. This means that the inmate will qualify for resentencing that will put his sentence in line with the sentences that drug crime offenders are presently getting.

A New York Drug Possession Lawyer said there are mixed arguments about resentencing drug offenders, but there is simply not enough room in the prisons to house everyone who has been convicted of a drug offense. It is important that the people who have been arrested for drug offenses, and given indeterminate sentences, contact a Queens Drug Lawyer. A Queens Criminal Lawyer can represent your interests and help you regain your freedom.

Published on: May 1, 2012

Court Discusses Jurisdiction in Shoplifting and Drug Charges

by Stephen Bilkis

A New York Criminal Lawyer said the appellant of this case is the State of Florida. The state of Florida is being represented by the attorney general, Robert L. Shevin, and the assistant attorney general, Richard W. Prospect. The appellee in the case is Gregory Dean Bradley. He is being represented by public defender, Michael J. Minerva, and assistant public defender, Janice G. Scott.

The case is being heard in the first district of the District Court of Appeal in the state of Florida. The judge overseeing the case is Boyer.

Appeal

Published on: April 30, 2012

Court Determines Admissibility of Evidence

by Stephen Bilkis

A patrolman was on patrol one evening when he was ordered to investigate a complaint regarding abandoned automobiles in the vicinity of 24 Max Avenue, Hicksville, New York. A New York Criminal Lawyer the building located at that address contains two factory establishments and an apartment on the first floor.

In the course of the investigation, the patrolman knocked on the front door of the apartment at about 9:15 that evening. In response he heard the voice of a very young child whom he later ascertained to be two years of age. He asked through the door if child’s father or mother is at home. The child answered in the negative. He then again asked whether anyone else was home and again the child replied in the negative. The door was not opened. It was locked. He peered through the curtained window and saw the lights on and a television set in operation. At this point, the police officer made a radio call for assistance from the Juvenile Aid Bureau of the Nassau County Police Department. Following the call, a detective of the Juvenile Aid Bureau along with a Sergeant and another Patrolman, operating a police ambulance, convened at the premises. They all approached the apartment. The Patrolman knocked on the door, and on this occasion, a different young voice answered. The patrolman requested the child to open the door. The door was opened and he was met by a five year old female. Thereafter, the police officer questioned the little girl as to the whereabouts of her parents. She told him that there was no one else in the apartment besides the two children. The officer ascertained at that time that the young girl was five years old, and that the child who first answered his knocking was a little boy two years of age.

In the course of being questioned the young girl admired the service revolver belonging to the patrolman and said, “defendant-man has a gun like that”. The girl then turned around and walked over to a cabinet and said, “See, here it is”. She had picked a loaded .38 caliber Smith & Wesson revolver out of the top drawer and the police officers immediately took the gun from her before anything happened. The police asked her, “Has defendant-man any more guns?”, and she replied, “Yes, he has a lot of guns and he also has pot and speed”. She then went back to the same drawer and picked out a plastic bag which contained marijuana and also gave it to the police officers.

Published on: April 30, 2012

Defendant Brings Motion to Supress Idenification Testimony

by Stephen Bilkis

This is an appeal of a man from his judgment in the Supreme Court convicting him of criminal possession of a weapon in the second and third degree, upon a jury verdict. A New York Criminal Lawyer said the appeal brings up for review the denial of the accused man’s motion which was to suppress identification testimony and upon an order the court that reversed the above mentioned decision.

Contrary to the accused man’s contention, the pretrial lineup identification was not improperly suggestive. The photographs taken of the lineup reflect that the slight differences in skin tone between the man and the fillers were not so apparent as to orient the viewer toward the man as the offender of the crimes charged. A New York Criminal Lawyer said that based on records, the skin tone is only one of the factors to be considered in deciding reasonable similarity and differences in skin tone alone will not render a lineup improperly suggestive. A the court does not find that the presence of a small tattoo on the side of the man’s face rendered the lineup improperly suggestive.

The court found that improper remarks by the prosecutor during summation deprived the man of a fair trial. The prosecutor improperly vouched for a witness and implied that the witness faced retribution from the man when he stated that the witness testified not knowing what the consequence would be for herself and her family. A said that based on records, a prosecutor may not strengthen the credibility of a witness by making himself or herself unsworn witness and supporting his case by his own veracity and position.

Published on: April 30, 2012

Court Discusses Plain View Doctrine

by Stephen Bilkis

Computers are playing an ever increasing role in crime and criminal activity. In some cases, case law is still in a state of flux in determining how certain searches are affected by this technology. A New York Criminal Lawyer said the question of novel issues in court are more common because of this. In one such case, the question was raised of whether a warrant authorizing a search of text files that are on a computer for documentary evidence pertaining to one particular crime, authorizes a search of image files on the same computer that contain evidence of a different crime. In cases like this, the question of law relates to the plain view doctrine.

The plain view doctrine states that anything that an officer can see in plain view while he or she is legally in a location, can be seized without a warrant. The suspect can then be charged with whatever crime the item suggests they are involved in. There are many cases that have established the case law referring to the plain view doctrine. Recently, the plain view doctrine has taken on an entirely different arena. The plain view doctrine can now be applied to computer files that are opened pursuant to a search of the computer. In other words, in the old days, the plain view doctrine applied to anything that an officer could see that was physically in plain view. For instance, a New York Criminal Lawyer said if the officer was inside a house relative to a domestic violence call, and observed a marijuana plant growing in the room, he could seize it and charge the person with possession of marijuana. The reason that he could seize it without a warrant is that he was inside the house legally handling a call for service and observed the plant in plain view. Now, most of us do not think about the files in a computer being in plain view, but if you think about them in the following fashion, it can be understood.

If an officer is searching a file cabinet located in a home for child pornography, under a search warrant that entitles him to look for evidence of the crime of child pornography, he is looking through the file cabinet legally. If he then sees a file that references drug crime, he can seize that file and make the appropriate charges, because he was legally in the file cabinet under the search warrant when he observed the additional file in plain view.

Published on: April 29, 2012

Police Officer Killed During Burglary

by Stephen Bilkis

A woman and her partner went into a boutique where they obtained a talked with the owner. While the woman went through the process of trying on several dresses that none of which were purchased, the woman’s partner asked directions going to the bathroom which was located to the rear of the store and which he carefully surveyed for the purpose of accomplishing the upcoming burglary. Three days later at about 2:15 a.m., the woman together with her partner pulled into the rear alleyway behind the boutique and stopped the car with the car trunk facing the rear bathroom window. On the evening before, the man which was the woman’s partner had purchased an ankle holster for a gun he owned. Consequently, while the woman acted as a lookout, the man entered the boutique by the bathroom window and he then brought numerous articles of women’s clothing, including 240 ladies’ blouses, 16 pantsuits and 16 ladies’ coats, into the bathroom and gave these articles to woman through the bathroom window. The woman then placed the articles in the trunk of the car. At that moment, an officer accompanied by another officer, who was on routine patrol duty saw the car in the alley and spotted the open bathroom window to the boutique. The officer’s promptly called for assistance. The officer’s also saw the woman hiding behind the car. The questioning by the officers took from one to three minutes and was limited to inquiry of what she was doing, however no arrest was then made.

A New York Criminal Lawyer said apparently, an officer who had just arrived because of the radio call went to the street to cover the front of the store. Simultaneously, the man broke out the front of the store. The officer, who had not drawn his gun, attempted to stop the man but at that point the man attempted to escape the scene and later shot the officer. The officer then died from the wound inflicted by the man.

The woman now contends that there should be a reversal in the conviction that the court made a mistake in refusing to charge the jury as requested by the woman. An NY Criminal Lawyer said the court stated that they found no error or deficiency in the court’s main charge or its refusal to adopt the specific requests to charge. The woman willingly and voluntarily involved herself, and indeed fully participated in a burglary and by doing that she necessarily accepted all the consequences of the felony murder committed either during the course of the burglary or during the man’s immediate flight from the burglary. Based on records, it cannot be reasonably argued that the officer’s momentary intervention as the man was exiting the boutique and fleeing from the burglary, terminated either the burglary or the man’s immediate flight there from. In previous cases, a unanimous court upheld the felony murder conviction upon facts significantly similar and really identical with the woman’s case.

Published on: April 28, 2012

Court Discusses Reliability of Field Sobriety Tests

by Stephen Bilkis

When a person gets behind the wheel of a car, they are getting behind the wheel of a machine that is heavy enough to kill another person. It is a weapon when used offensively against another. When a person has already proven that they are incapable of using good enough judgment to continue to possess a driver’s license, is found to be driving a vehicle while under the influence, the crime is especially heinous.

However, justice has many steps for a reason. A New York DWI Lawyer said our justice system is an adversarial justice system. The adversarial nature is in place to prevent the mistakes that human beings make. The appeal process is not in place to provide a sounding board for every criminal. A New York DWI Lawyer said there must be a constitutional ground that makes the case worth reviewing once it is past the Superior court level. In one case that involved a habitual violator with a revoked license, a police officer pulled up behind a car that was parked on the side of the road. When the officer approached the vehicle, he noticed that the subject had a strong odor of alcohol about his person and that his eyes were bloodshot and glassy. His speech was slurred and the subject was unsteady on his feet.

Field Sobriety Tests are notoriously questionable. A Nassau County DWI Lawyer said that they are designed for failure, so it is rarely a surprise when a person who has been asked to participate in these tests, does not pass them. In this case, the subject failed two of the three tests, but it is not clear which ones or what the criteria was for the officer to consider the test to be a failure. The defendant maintained that his arrest was illegal because the officer did not see him driving and could not make a determination that his driving was impaired.