Long Island

Published on: August 27, 2012

Court Looks Whether Injunctions Should be Terminated

by Stephen Bilkis

The Facts:

Sometime in 1993, a 42 U.S.C. § 1983 action was brought by Plaintiffs-Appellees, a certified class of detainees in the Cameron County, Texas jail, against Cameron County and the State of Texas, the governor of Texas, and various members of the Board of the Texas Department of Criminal Justice. The plaintiffs, who were imprisoned for various crimes like assault, rape, kidnapping, robbery, murder, larceny, other white collar crimes, etc., alleged that overcrowding at the Jail produced conditions that constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the U.S. Constitution. A New York Criminal Lawyer said the plaintiffs originally filed suit against only the County. The County brought a third-party complaint seeking injunctive relief against the State, alleging that the State failed to expeditiously transfer nearly 300 paper ready inmates to state correctional facilities and, therefore, was responsible for the constitutional violations.

On 21 January 1994, the plaintiffs filed an amended complaint, adding the State as a defendant, and on 20 May 1994, they filed an application for a preliminary injunction, in an attempt to remedy the overcrowding by enjoining the County and the State from incarcerating more prisoners in the Jail than allowed by the Texas Jail Standards.

Published on: August 14, 2012

Court Discusses Waiver of Right to Appeal

by Stephen Bilkis

This is a case being heard before the Supreme Court, Appellant Division, Second Department of the State of New York. The respondent in this matter is the People of the State of New York. Jay Jomar Bradshaw is the appellant of the case.

The defendant is appealing a judgment that was made in the Kings County Supreme Court. A New York Criminal Lawyer said the judgment convicted him of rape in the first degree after he pleaded guilty to the crime. The appeal will review the denial of the charges after a hearing for suppression of identification.

Case Background

Published on: August 11, 2012

Court Treatment for Defendant in Drug Possession Case

by Stephen Bilkis

This is a matter of an application made by the petitioner Ronald Miller in regard to a judgment that was filed in the Franklin County Clerks office on the 29th of January, 2008. The respondent in the case is Brian Fischer who is the Commissioner for the NYS Department of Correctional Services. The case is being heard in the Supreme Court of the State of New York located in Franklin County.

Case Background

On the 21st of November, 2006, the petitioner was sentenced in the Suffolk County Court as a second felony offender. His sentence was set at five years with two years of post release supervision. This sentence was for his conviction of the crime of criminal possession of a controlled substance (drug possession).

Published on: August 7, 2012

Defendant Charged with Third Degree Rape

by Stephen Bilkis

Incidents of rape and sexual assault cases involve many different laws. Each case is reviewed in relationship to how it addresses each element of each law. A New York Criminal Lawyer said the most appropriate law or multiple laws are then charged by the prosecution. In some case, a charge is reduced to a lesser included offense because the jury or prosecutor decides that the lesser included offense if more appropriate to the actions of the charged offender. One case of this type occurred in 2008.

On May 21, 2008, a man was charged with rape. He was convicted after a jury trial on May 28, 2008 of third-degree rape, which is detailed under New York Penal Law § 130.25(3). This charge was determined by how the victim expressed her lack of consent to the sexual assault. This victim apparently never stated the actual term “no,” but rather testified that she had been crying the entire time and stating that she just wanted to go home. The court concluded that any reasonable person observing this situation would conclude that the victim was not consenting to the act. The defense maintained that he did not consider her actions to be a refusal because she never actually stated that she did not want to have sex with him. The court evaluated the totality of the evidence which included the fact that this was his second or third offense of sexual assault.

They also reviewed the fact that the offender forced the woman into his apartment against her will and used threats of physical injury to prevent her from leaving. The court determined that when viewed in their entirety, the circumstances surrounding this assault clearly contained all of the necessary elements to be considered a rape. Because of this, the offender’s request to have his conviction overturned was denied.

Published on: August 4, 2012

Defendant Set Up in Sting Operation

by Stephen Bilkis

When police officers make an arrest, it is important that they do so in the proper jurisdiction. The case must then be presented to the Grand Jury if it is a felony. A New York Criminal Lawyer said hat Grand Jury must be in the correct venue to draw an indictment. If it is not, then the case is not legal. One such case was served as a motion from a defendant on June 5, 2005. The defendant claimed that the indictment against him needed to be dismissed because the crime had not occurred in New York County.

The police detective contends that over a period of several weeks, he had telephone conversations with a confidential informant. This informant provided him with information that the defendant and several of his friends had a plan to rob some drug dealers. He stated that the group planned to stockpile some weapons (possession of a weapon) and create a robbing gang. This gang would target drug dealers and rob them of their drugs and cash. The informant contacted the police department. The police detective told the informant to give this robbing gang bad information about a non-existent drug dealer who had 60 kilos of cocaine and a large amount of money. The gang began to make their plans. The detective told the informant that the address that he was to give to the gang was an address in the Bronx. The defendant and his accomplices were arrested and indicted. They maintained that none of the telephone conversations that were the crux of the case occurred in New York County. Because they did not occur in New York County, the state could not prosecute the crimes of conspiracy to commit a crime and the numerous other charges that the gang was indicted on.

The prosecutor makes the argument that the intended target was an address in the Bronx which was in New York county. The prosecutor contends that the intended target would make the case venue New York County. The Supreme Court disagreed. A Long Island Criminal Lawyer said they made several disparaging remarks directed at the prosecutor and at the detectives involved in this case. They contend that the detective did not ascertain the jurisdiction that he or the confidential informant were in at the time that the phone calls were made. Since the jurisdictional issues cannot be formulated based on the locations of each party to the calls, then the court is not able to establish venue for the hearings. They contend that the argument that would apply the jurisdictional issue to the proposed target location is not realistic. The court contends that the crime took place at the location in which one or both of the parties to the telephone conversation were located at the time of the conversation. If the jurisdiction cannot be determined, then the case is not able to continue.

Published on: July 29, 2012

Defendant Contends Sentencing was Unconstitutional

by Stephen Bilkis

The Facts:

A New York Criminal Lawyer said on 15 December 1981, defendant was convicted of several drug crimes (which includes marijuana possession, heroin possession, etc.), viz: Criminal Sale of a Controlled Substance in the First Degree, Conspiracy in the Second Degree and Criminal Use of Drug Paraphernalia in the Second Degree. Defendant was sentenced to various terms of imprisonment.

The Issue:

Published on: July 24, 2012

Defendant Files Motion to Dismiss Due to Transactional Immunity

by Stephen Bilkis

In 1980, the district attorney summons a grand jury to investigate allegations concerning a gas company. In connection with that investigation, the district attorney issued a subpoena directing the company’s president, to present to the grand jury numerous books and records of the company.

In addition,a New York Criminal Lawyer said the grand jury issued a subpoena directing the president to appear and give testimony. Consequently, the president appeared and testified to the company’s sales volume, his knowledge of that volume, his involvement in the company’s operation and his knowledge of about the financial situation.

The attorney-general secured charges against the president charging him with one count of grand larceny in the second degree (sales tax evasion) and sixteen counts of offering a false instrument for filing in the first degree (false sales tax returns).

Published on: July 23, 2012

Issue Revolves Around Whether Defendants Knew They Were in Possession of a Forged Instrument

by Stephen Bilkis

The Facts

On 2 July 1982, defendant presented a check in the amount of $254.78 to a cashier employed by a Market to pay for a $30.06 bill for groceries. A New York Criminal Lawyer said the check was made payable to person-one and drawn against an account maintained by a corporation.

The check was presented with the Market’s customer check cashing card which had been issued to person-one. At the time the check was presented to the cashier, it bore the signature of person-two, as maker on behalf of the corporation, and was indorsed on the reverse side of the check in the name of person-one. In order to receive cash to return to defendant, the cashier went to the service counter where she handed the check and the check cashing card to the head cashier. The head cashier recognized the check as one for which an alert had been received by the store a few days earlier, thus, he instructed the cashier to detain defendant, and called the police and the assistant store manager. Thereafter, defendant indicated to the assistant store manager that the check was his. (Defendant repeatedly denied that this conversation with the assistant store manager ever occurred.) While the assistant store manager attempted to detain defendant, defendant left the store. The assistant store manager followed defendant out of the store and identified him to the police.

Published on: July 23, 2012

Court Decides jurisdiction Between State and Federal Court

by Stephen Bilkis

The plaintiff in the matter is the Greenview Trading Company. The defendants in the matter are Hershman & Leicher, P.C., Harold M. Hershman, Indu Craft, PLC of New York, Incorporated, and Richard Rottman. A New York Criminal Lawyer said the case is being heard in the Supreme Court in the state of New York located in New York County. The acting justice in the case is David B. Saxe.

The question before the court in this case is whether state courts have concurrent jurisdiction with federal courts to hear private civil actions regarding damages under the RICO act, or are these actions only within the federal domain.

Case Background

Published on: July 21, 2012

Court Discusses Whistleblower Law

by Stephen Bilkis

A woman was employed from a not for profit agency. She worked as a coordinator of the employment services. A New York Criminal Lawyer said when she was still a probationary, she was terminated for alleged unsatisfactory job performance. Eleven months later, she initiated an action claiming that she was terminated because of her objection to and refusal to participate in the agency’s alleged fraudulent billing to the city for placements it never made. The agency finds employment for job applicants or places them in educational or training programs, for which it receives funding from the city.

The agency moved to dismiss the complaint on the ground that it failed to satisfy the two elements which are conditions precedent to the maintenance of an action under a whistleblower law. Based on records, the whistleblower law applies to relatively few situations and several proponents accepted to its narrow scope and urged broader application.

Consequently, the woman asserted that the agency’s billing practices constituted a grand larceny. The court then denied the motion and finding that the complaint states a valid reason for action under the labor law. Based on records, the part of the labor law provides that an employer shall not take any disciplinary personnel action against an employee because such employee does discloses or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety.