Bronx

Published on: March 18, 2013

Court Decides if Defendant Has Right to Speedy Trial after Traffic Infraction

by Stephen Bilkis

The defense motion to dismiss the charge of Driving While Ability Impaired by Alcohol, a traffic infraction, pursuant to the speedy trial provisions of Criminal Procedure Law (CPL) is denied. While CPL does not apply to traffic infractions there is a constitutional right to a speedy trial which has not yet been violated.

A New York DWI Lawyer said it is undisputed that fifty-two days between the accused man’s arraignment and the complainant being ready for trial are chargeable to the complainant. The accused argues that the case should be dismissed as more than 30 days have passed since the accused man’s arraignment, the time allowed to be ready for trial on a violation.

Criminal Procedure Law establishes that when the accused is not in custody, the complainant must be ready for trial within 90 days if the highest crime charged is a class A or unclassified misdemeanor which is punishable by a term of imprisonment of more than three months or within 60 days if the highest crime charged is a class B misdemeanor which is punishable by a term of imprisonment of less than three months or within 30 days if the offense is a violation.

Published on: March 18, 2013

Defendant Seeks to Withdraw his Plea Based on Duress

by Stephen Bilkis

Defendant was indicted in three separate indictments by a Grand Jury charging him with two counts of assault in the second degree, escape in the second degree and resisting arrest; two counts of grand larceny in the third degree; and two counts of grand larceny in the second degree and one count of grand larceny in the third degree, respectively. Thereafter, a New York Criminal Lawyer said the People moved to permit defendant to withdraw his not guilty pleas to all three indictments and substitute therefor a plea of guilty to one count of grand larceny in the third degree with respect to the second indictment and one count of grand larceny in the second degree with respect to the third indictment, in full satisfaction of all three indictments and of a felony offense for which he had been arrested but not yet indicted.

On appeal defendant urges that the plea bargain was illegal because it encompassed dismissal of a felony complaint for which he had not yet been indicted. A New York Criminal Lawyer said the court ruled that while County Court had no authority to dismiss the felony complaint and did not purport to do so, the District Attorney had the discretion and authority to decline to continue prosecution of that offense. His agreement to do so as part of a negotiated plea is certainly legal.

Defendant next contends that his guilty plea to grand larceny in the second degree, a class D felony, permitted a maximum sentence of 3 1/2 to 7 years as a second felony offender. However, because the plea agreement provided for a sentence of 4 to 8 years in the event that defendant failed to make restitution of $11,000, defendant claims that his plea was illegal. We disagree. The Court viewed County Court’s action as an inadvertent misstatement. At the time of sentencing County Court properly sentenced defendant to a prison term of 3 1/2 to 7 years. It has long been the rule that a court has the inherent power to correct its own error in imposing sentence.

Published on: March 18, 2013

Defendant Charged with Stealing Contents of Airplane Hangar

by Stephen Bilkis

In this case, a security officer assigned at an airline’s hangar at Kennedy Airport was approached on numerous occasions in the spring of 1976 by the defendant, who indicated an interest in securing entry to the hangar and in taking money from the safe therein. The security officer was offered the chance to make some money if he co-operated. A New York Criminal Lawyer said during the course of these conversations, he was asked, in increasing detail, about the alarm system in operation at the hangar. The security officer reported these conversations to his supervisor, the head of security of the airline.

The security officer had been in continual touch with his supervisors and the police had been alerted. Indeed, by the time Defendant was permitted into the hangar, one gate was manned by an undercover police officer posing as a security guard.

On October 26, 1976, Defendants called the security officer and told him they wanted to “come in that night.” At 11:15 P. M. The security officer met defendant at a diner. At 11:30 they entered a car and were joined by the co-defendants, who was carrying an attache case. Enroute to the airport, defendant discussed the job with the security officer. Defendant told him that in five years, “when its all over,” his share would be sent to him. Defendant advised him that in order to make it “look good” he would shackle him and take his gun. The other security guard would be tied and dropped off at the edge of the airport.

Published on: March 5, 2013

Defendant Charged with Criminal Facilitation in the 4th Degree

by Stephen Bilkis

An appeal was made by the accused man from a judgment of the County Supreme Court rendered on October 26, 1983, convicting him of four counts of criminal facilitation in the fourth degree, upon a jury verdict, and the imposing sentence. A New York Criminal Lawyer said the judgment was affirmed and the matter was remitted to the County Supreme Court for further proceedings pursuant to the Criminal Procedure Law.

Pursuant to the defense counsel’s request, the trial court charged criminal facilitation in the fourth degree as a lesser included offense of grand larceny in the second degree and attempted grand larceny in the second degree. The accused man was ultimately found guilty of four counts of criminal facilitation in the fourth degree and acquitted of all other charges. The accused argues, as he did on his motion to set aside the verdict, that criminal facilitation in the fourth degree is not a lesser included offense of grand larceny in the second degree and attempted grand larceny in the second degree and that the defect in erroneously charging such a request is non-waivable inasmuch as it goes to the court’s subject matter jurisdiction. A New York Criminal Lawyer said criminal Term resolved both issues against the accused man. Since the accused man effectively waived any error in the submission of the charge of criminal facilitation in the fourth degree to the jury, the Appellate Court affirms.

A comparative evaluation of the two operative statutes, grand larceny in the second degree and criminal facilitation in the fourth degree reveals that the latter is not a lesser included offense of the former because it is theoretically possible for a person to commit the crime of grand larceny in the second degree without intending to aid anyone else in the commission of a felony.

Published on: March 3, 2013

Juvenile is Charged with Cocaine and Marijuana Possession

by Stephen Bilkis

A juvenile is appealing adjudications made against him that found him guilty of possession of cocaine and marijuana. A New York Criminal Lawyer said he states that the trial court erred when they denied his motion for judgment of acquittal when the state had failed to present substantial evidence to prove constructive possession of the contraband.

Adjudicatory Hearing

During the adjudicatory hearing there was testimony that revealed that the defendant along with a friend asked another person for a ride to a woman’s house to pick up some items. The defendant rode in the back of the individual’s truck. The defendant and his friend got out of the truck at the house. The young men did not know that the house was under surveillance.

Published on: March 1, 2013

Court Discusses Charge of Criminal Facilitiation

by Stephen Bilkis

A man was indicted on charges of four counts of grand larceny in the second degree. He was arraigned and he was tried. A New York Criminal Lawyer said that after the presentation of the evidence for the prosecution, the counsel for the accused asked the court that instead of the four counts of grand larceny, the court consider instead charging the accused of four counts of criminal facilitation in the fourth degree. The trial court found that criminal facilitation in the fourth degree was a lesser included offense of Grand Larceny.

The trial court charged the man instead of four counts of criminal facilitation. The jury convicted him of the same charges and he was sentenced. The accused filed a motion to set aside the verdict of guilt on the ground that the lesser criminal offense of criminal facilitation is not a lesser included offense of grand larceny.

It was the contention of the accused that since the trial court did not have jurisdiction over the crime of criminal facilitation, it cannot have the power to charge the accused of that crime. However, the Supreme Court or Queens County found that since the accused himself moved that he be charged with the lesser included offense of criminal facilitation, he has waived his right to question the charge.

Published on: March 1, 2013

Defendant Contends Sobriety Check Point was Illegal

by Stephen Bilkis

At around midnight of April 15, 1992, the police set up a DWI checkpoint at the corner of Clinton and Stanton Streets in Manhattan. The police officers set up the checkpoint so that all the passing cars would be funneled into one lane and every motorist would have to pass the checkpoint.

A New York Criminal Lawyer said when the accused drove up to the check point, the police officer was standing near the driver’s side. He knocked on the window and the driver rolled down his window. The police officer asked the driver something which he could not remember when he testified at the probable cause/ preclusion hearing. Even the accused could not remember what the police officer asked him.

At this time, the police officer asked the driver to pull over to the side of the street because he saw that the driver had watery bloodshot eyes and he could smell alcohol on his breath. When the driver was already parked on the side of the road, the police officer asked him to exit the car. The driver was unsteady on his feet. The driver told the police officer that he drank two beers and had to shots of vodka. The police officer also found an empty bottle of vodka in the car.

Published on: March 1, 2013

Court Determines if 18yr. Old Must Register as a Sex Offender Under SORA

by Stephen Bilkis

An 18 year old man was indicted in Florida for Sexual Battery in October 1997. When he was arrested and arraigned under the indictment, the 18-year old entered a nolo contendere plea (this means he did not plead guilty or not guilty but that he was not contending the indictment). A New York Sex Crime Lawyer said the trial court withheld a judgment of conviction and instead ordered that the 18-year old be placed under order of supervision. He was required to be under four years’ probation. The Florida trial court also ordered the 18-year old to register as a sex offender in the state of Florida. This sexual offender registry is the equivalent of New York’s sex offender registry under the Sex Offender Registration Act.

The 18-year old finished his four-year probation. In February 2006, the 18-year old wrote to the Criminal Justice Services of the state of New York to inform it that he was a registered sex offender in Florida who was contemplating on moving to New York.

The Criminal Justice Services sent him the sex offender registration forms by mail and sent him a letter requiring him to register under the SORA. A New York Criminal Lawyer said the Board also recommended that he be registered as a sex offender. The Supreme Court in Kings County assessed his risk level as level 1.

Published on: March 1, 2013

Defendant Found Breaking into Vehicle with Screwdriver

by Stephen Bilkis

A man, the herein defendant, was observed by a police officer breaking into a motor vehicle using a screwdriver. He was then arrested and indicted. A New York Criminal Lawyer said the indictment originally charged him with, inter alia, attempted grand larceny in the second degree based on an allegation that he attempted to steal property, an automobile, with a value of more than $1,500. However, this charge was incorrect, inasmuch as the attempted grand larceny in the second degree, pursuant to Penal Law, requires an allegation that the property exceeded $50,000 in value. Thus, shortly before trial commenced, the prosecutor moved, without any objection by defense counsel, to amend the indictment to charge attempted grand larceny in the third degree on the basis that the defendant attempted to steal property valued in excess of $3,000. The proposed amendment was legally correct and conformed to the evidence and the instructions presented to the Grand Jury. However, although the court indicated that it would grant the motion, only the accusatory portion of the count was amended from attempted grand larceny in the second degree to attempted grand larceny in the third degree; the factual portion alleging that the value of the subject property exceeded $ 1,500 remained unchanged, and therefore, the count was still incorrect. Thereafter, on 8 August 1995, the Supreme Court of Queens County rendered judgment convicting him of attempted grand larceny in the third degree, criminal mischief in the third degree, and possession of burglar’s tools, upon a jury verdict, and imposing sentence.

Consequently, the defendant files an appeal from the said decision.

The Ruling of the Court:

Published on: March 1, 2013

Defendant Claims an Error was Made in Sentencing

by Stephen Bilkis

The petitioner is a federal prisoner who has petitioned to have an error of law in the calculation of his sentenced based on a Supreme Court Decision that interpreted sentence guidelines. This decision was made eleven years after the defendant was sentenced.

A New York Criminal Lawyer said the issue before the court is whether the savings clause permits a federal prisoner to challenge his sentence in a habeas corpus petition when he could not raise that challenge in motion because of the bar against successive motions.

Petitioner’s Argument