Bronx

Published on: January 20, 2013

Court Says Probable Cause May Be Supplied in Part by Hearsay Information

by Stephen Bilkis

This is an appeal by the defendant from a judgment of the County Court, Nassau County, rendered October 21, 1993, convicting him of murder in the second degree (two counts), robbery in the first degree (two counts), criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of the branch of the defendant’s omnibus motion which was to suppress statements made by the defendant to law enforcement officials.

The issue in this case is whether the defendant is entitled to the suppression of his statements made to the law enforcement officials.

A New York Criminal Lawyer said in this gun crime case, the Court said that, the People established that the police had probable cause to arrest the defendant without a warrant. Probable cause may be supplied, in whole or in part, through hearsay information. Under the Aguilar- Spinelli rule, when probable cause is predicated in whole or in part upon the hearsay statement of an informant, it must be demonstrated that (1) the informant disclosed a sufficient basis for his or her knowledge, and (2) the informant was reliable. Further, the basis-of-knowledge and veracity requirements of Aguilar- Spinelli are analytically independent and each must be satisfied separately. “Information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest.

Published on: January 15, 2013

Court Discusses the Elements of Petit Larceny

by Stephen Bilkis

In this petit larceny case, this court reversed appellant’s conviction for robbery and “remanded for judgment and sentence for petit larceny.” However, after remand, at the state’s request, the trial court sentenced appellant for felony petit theft. A Seminole Petit Larceny Lawyer said that, appellant appeals, arguing that the charging document charging him with robbery did not allege that he had two or more prior petit theft convictions which convictions are essential elements of the substantive criminal offense of felony petit theft and, therefore, he was never charged with felony petit theft and his sentence for that crime violates his constitutional due process rights.

The issue in this case is whether the Court erred in sentencing appellant for the felony of petit theft.

A New York Criminal Lawyer said the Court said that, in a 1978 case, the Florida Supreme Court held (1) that the felony petit theft statute (then section 812.021(3), now section 812.014(2)(c), Florida Statutes created a substantive offense, and (2) that the required two or more prior petit larceny convictions are elements of that substantive offense which must be specifically alleged and proved. To avoid jury prejudice against the accused, that case also held that proof of the prior petit theft convictions can be made to the court in a separate proceeding after the jury finds the defendant guilty of the charged petit larceny offense.

Published on: January 12, 2013

Court Discusses “Suitable Residence” Requirement for Defendant’s Parole

by Stephen Bilkis

This case is about the Petition for a Writ of Habeas Corpus filed by the Petitioner who challenged his continued incarceration in the custody of the New York State Department of Correctional Services (DOCS). He argued that the delinquent time assessment imposed on November 5, 2008 following his final parole revocation hearing already expired on February 17, 2010.

It all started on September 10, 1997 when petitioner was convicted of the crime of Arson in the second degree and was given an indeterminate sentence of 7 to 14 years. In 2006, he was released from DOCS custody to parole supervision. His parole was subsequently revoked and was sent to a drug rehab center. In January 2007, Petitioner was released back to community based parole supervision, but thereafter, violated again the conditions of his release. He was returned to DOCS custody as a parole violator.

A New York Criminal Lawyer said on September 10, 1997 petitioner was sentenced in Oneida County Court, to an indeterminate sentence of 7 to 14 years, upon his conviction of the crime of Arson 2°. Petitioner was first released form DOCS custody to parole supervision in September of 2006. His parole, however, was subsequently revoked but restored at the Willard Drug Treatment Campus. Petitioner was released from Willard back to community-based parole supervision in January of 2007 but he again violated the conditions of release and was returned to DOCS custody as a parole violator.

Published on: January 11, 2013

The Issue in this Case is Whether Defendant’s Guilt was Proven Beyond a Reasonable Doubt.

by Stephen Bilkis

In this criminal case, defendant appealed from a judgment of the County Court, Nassau County (Jonas, J.), rendered November 18, 1991, convicting him of attempted murder in the first degree, criminal possession of a weapon in the second degree (two counts), reckless endangerment in the second degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the fourth degree, upon a jury verdict, and imposing sentence.

A New York Criminal Lawyer said the issue in this case is whether defendant’s guilt was proven beyond reasonable doubt.

The Court held that, the evidence presented at trial was legally sufficient to establish beyond a reasonable doubt that the defendant had the requisite intent for criminal possession of a controlled substance in the third degree. The defendant was in possession of 12.312 grams, or .434 ounces, of cocaine. There was legally sufficient evidence of the element of intent to sell a controlled substance based upon the defendant’s possession of this quantity of cocaine.

Published on: January 8, 2013

The issue in this case is whether the superior court information was jurisdictionally defective because it charged a crime of a higher degree than any of the crimes charged in the felony complaint

by Stephen Bilkis

On November 22, 2006, defendant executed in open court a written waiver of his constitutional right to be prosecuted by indictment and consented to be prosecuted instead by a superior court information charging him with first-degree of grand larceny, which requires that the value of the property stolen exceed $ 1 million. More than three months earlier, defendant had been arrested and charged in a felony complaint with second-degree grand larceny, which requires that the value of the property stolen exceed $50,000, and second-degree criminal possession of a forged instrument. The felony complaint charged that defendant was the head of accounts payable at Nina Footwear and had stolen approximately $700,000 from the company by issuing forged checks to himself and a codefendant. Notably, the felony complaint also alleged that defendant had admitted to the police that he had issued the checks in question and forged the signatures. Thereafter, as the minutes of the several proceedings in criminal court prior to November 22 establish, defense counsel and the prosecutor were negotiating a disposition.

A New York Criminal Lawyer said at the outset of the proceedings, defense counsel made clear that defendant had not wanted and did not want to be indicted by a jury. The court noted that a superior court information had been prepared and that the People would proceed to a jury if a disposition was not reached. After the court stated that the felony complaint charged defendant with stealing hundreds of thousands of dollars from Nina Footwear, the prosecutor stated that “since the complaint was drafted, there has been a significant amount discovered on top of that. It is now over 1 million dollars.” The court then outlined on the record the disposition to which the parties had agreed: defendant would plead guilty to a superior court information charging him with first-degree grand larceny in exchange for a prison sentence of 2 1/3 to 7 years, pay some $ 100,000 in restitution and consent to the entry of judgment against him in the full amount of the theft, about $1.5 million.

Following discussions between the court and counsel, defendant signed a waiver of indictment form. As required by CPL 195.20, the written waiver of indictment contained a statement by defendant that he was aware that he had the right under the New York State Constitution to be prosecuted by a grand jury indictment, was waiving that right and consenting to be prosecuted by a superior court information, and that the information would be charging the offense specified in the written waiver and have the same force and effect as an indictment filed by the jury. Also as required by CPL 195.20, the written waiver was signed by defendant in open court in the presence of his attorney, and the consent of the District Attorney was endorsed thereon.

Published on: January 8, 2013

Prison Inmates Contend Constitutional Rights Were Violated

by Stephen Bilkis

Respondent inmates brought this class action in Federal District Court challenging the constitutionality of numerous conditions of confinement and practices in the Metropolitan Correctional Center (MCC), a federally operated short-term custodial facility in New York City designed primarily to house pretrial detainees for federal criminal offense. A New York Criminal Lawyer said the District Court, on various constitutional grounds, enjoined, the practice of housing, primarily for sleeping purposes, two inmates in individual rooms originally intended for single occupancy (“double-bunking”); enforcement of the so-called “publisher-only” rule prohibiting inmates from receiving hard-cover books that are not mailed directly from publishers, book clubs, or bookstores; the prohibition against inmates’ receipt of packages of food and personal items from outside the institution; the practice of body-cavity searches of inmates following contact visits with person from outside institution; and the requirement that pretrial detainees remain outside their rooms during routine inspections by MCC officials. The Court of Appeals affirmed these rulings, holding with respect to the “double-bunking” practice that the MCC had failed to make a showing of “compelling necessity” sufficient to justify such practice.

The issue in this case is whether the constitutional rights of the inmates has been violated because of the conditions of confinement and practices imposed by the MCC, a facility designed to house a pre-trial detainees who committed federal criminal offense.

The Court held that, “double-bunking” practice does not deprive pretrial detainees of their liberty without due process of law in contravention of the Fifth Amendment.

Published on: January 7, 2013

Court Hears Case Based on Professional Misconduct

by Stephen Bilkis

On February 20, 1967, the then City Manager of respondent city of Independence, appointed petitioner to an indefinite term as Chief of Police. In 1972, petitioner and a new City Manager, engaged in a dispute over petitioner’s administration of the Police Department’s property room. In March of that year, a handgun, which the records of the Department’s property room stated had been destroyed, turned up in Kansas City in the possession of a felon. A New York Criminal Lawyer said this discovery prompted the City Manager to initiate an investigation of the management of the property room. Although the probe was initially directed by petitioner, the City Manager soon transferred responsibility for the investigation to the city’s Department of Law, instructing the City Counselor to supervise its conduct and to inform him directly of its findings.

Sometime in early April 1972, the City Manager received a written report on the investigation’s progress, along with copies of confidential witness statements. A Westchester County Criminal Lawyer said that although the City Auditor found that the Police Department’s records were insufficient to permit an adequate accounting of the goods contained in the property room, the City Counselor concluded that there was no evidence of any criminal acts or of any violation of state or municipal law in the administration of the property room.

A Suffolk Criminal Lawyer said that, the City Manager asked petitioner to resign as Chief of Police and to accept another position within the Department, citing dissatisfaction with the manner in which petitioner had managed the Department, particularly his inadequate supervision of the property room. He warned that if petitioner refused to take another position in the Department his employment would be terminated, to which petitioner responded that he did not intend to resign.

Published on: January 1, 2013

Confidential Informants Can Establish Probable Cause

by Stephen Bilkis

The April 25, 1975 affidavit of the State Police Investigator in support of the application for the warrant to search the house and automobile of the defendants contains five distinct elements which in some way indicate that defendants were keeping illicit drugs in or about their house. A New York Criminal Lawyer said these elements are of two sorts: communications from confidential informants and observations by named police officers. The informant data can be summarized as follows:

Informant # 1 “who has provided information which led to the arrest and conviction of two subjects for Murder, the arrest of one subject and the seizure of a quantity of controlled substances (drug possession) advised me approximately six months ago that a guy named M, living on East Lane, Burden Lake * * * with his girlfriend, C, was selling and packaging heroin at his residence on East Lane.”

Informant # 2 told me that “he overheard a conversation between a subject known to him, who let him hear what was being said and CN. In the conversation, CN discusses a quantity of heroin which was stolen from her residence on Burden Lake. He also overheard MS discuss the loss of 2 grams worth $200.00 apiece.”

Published on: December 31, 2012

Probable Cause Questioned in Drug Crime

by Stephen Bilkis

A police officer was on patrol in her cruiser. She noticed a pick-up truck which was swerving and crossing over the solid yellow line dividing the two lanes onto the opposite lane. Then the pick-up truck swerved sharply back to its lane. The police officer then put on her siren and emergency lights and pulled the pick-up truck over.

A New York Criminal Lawyer said when the police officer pulled the pick-up truck over, she went to talk to the driver. She noticed that the driver’s eyes were glassy and red. She noted the smell of alcohol on his breath and the smell of alcohol coming from the interior of the truck. The man’s speech was slurred and he walked unsteadily. She conducted field sobriety test by asking the driver of the pick-up truck to stand on one leg. He dropped his other leg and could not stand on one leg. The officer asked the driver to also walk a straight line heel-to-toe and he could not do that, either.

The man admitted to the police officer that he’d drunk alcohol earlier that evening but he also said that he had already eaten and so he didn’t think that he was that drunk and was on his way home to sleep it off anyway. He also volunteered to the police officer that he had taken suboxone, a step-down drug from heroin addiction.

Published on: December 30, 2012

Defendant Claims Due Process Rights Violated in Drug Charge

by Stephen Bilkis

The police in Brooklyn suspected that a drug repacking business was carried out in an apartment building by the members of one family. They wrote down all the facts they have so far gathered about the heroin-repacking business in an affidavit and they applied for a search warrant. The judge granted them a search warrant and twelve officers formed a raiding party that would serve the search warrant.

When the police arrived at the ground floor of the building, a man was coming out. A New York Criminal Lawyer said when the police announced their presence, the man slammed the front door of the apartment building in the policemen’s faces. He then climbed the stairs to the second floor apartment screaming.

The police used a battering ram to enter the building and they used the same battering ram to gain access to the apartment since the apartment door had been locked and no one was answering the door.