Manhattan

Published on: December 27, 2012

Court Discusses Public Policy Regard Drug Treatment Programs

by Stephen Bilkis

Plaintiff 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 defendant which was traveling on Hylan Boulevard in Staten Island. At the time of jury selection, the plaintiff moved in limine to preclude the defendant from offering evidence of or in any way calling the jury’s attention to the facts of the plaintiff’s incontestable past use of heroin ( and his current participation in a methadone treatment program.

Following jury selection and prior to opening, the court granted the balance of the plaintiff’s motion and precluded the defendant from mentioning or offering any evidence of the plaintiffs past use of heroin (heroin possession). 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.

First, it is important to recognize what is not presented on the motion. A New York Criminal Lawyer said the motion does not question whether a plaintiff’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 plaintiff, such as life expectancy. In that context, with an appropriate foundation, testimony regarding the plaintiffs heroin use would surely be admissible. Nor is it about whether the plaintiff 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 plaintiff was under the influence of heroin at the time of his testimony. The use of heroin by the plaintiff 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. (See, e.g., People v Freeland, 36 NY2d 518, 525 [1975].) The lone issue decided by this court on the branch of the motion reserved to it was whether the plaintiff’s past use of heroin was admissible as an act of moral turpitude offered only to attack his credibility as a witness.

Published on: December 22, 2012

Defendant Charged with Two Crimes from Single Conversion of Money

by Stephen Bilkis

In this criminal case, appellant, was charged by information with robbery under section 812.13(2), Florida Statutes (1981) (Count I), and with grand theft, second degree, under section 812.014, Florida Statutes (1981) (Count II). The facts adduced at trial indicated that appellant and two other males had shopped lift a convenience store in Orlando by force, carrying away a cash register (valued at $250) which contained less than $50 in cash. The jury returned guilty verdicts on both counts, and appellant was subsequently adjudicated guilty of both robbery and grand theft, second degree. An Orlando Criminal Lawyer said that, the trial court sentenced appellant only on the robbery count, presumably on the authority of the extant rule at that time.

An New York Criminal Lawyer said that, appellant raises three points on appeal: the trial court’s denial of proffered impeachment evidence, the trial court’s denial of a motion for new trial based on newly discovered evidence, and a claim of double jeopardy in regard to the dual convictions.

The issue in this case is whether appellant’s appeal that he raises in his three points should be granted.

Published on: December 14, 2012

Defendant Uses “Agency Defense” in Heroin Possession Charges

by Stephen Bilkis

The defendant has been convicted of criminal sale of a controlled substance (drug possession) in the first degree (Penal Law, § 220.43) for allegedly selling a pound and a half of heroin to two undercover police officers in Manhattan. At the trial the defendant denied selling the drugs and testified instead that he had simply acted as the agent of the buyers, by locating a seller and helping the officers complete the purchase.

On this appeal the defendant claims that the trial court erred in charging the jury that he could only be considered an agent of the buyers if he acted “purely gratuitously” and that if he received “any benefit, however slight, from having participated in the transaction, he would not be an agent (of the buyers), but a seller.” A New York Criminal Lawyer said the prosecutor takes the position that the defendant was not prejudiced by the charge because the evidence, particularly the defendant’s own admissions at the trial, conclusively shows that he was not acting solely as an agent of the buyers. The People also urge that the so-called “agency defense” has been interpreted too broadly by the Appellate Divisions and should either be abandoned or applied only to a narrow class of cases.

The indictment charging the defendant with selling heroin to two undercover police officers on May 30, 1974 was the result of a joint State and Federal narcotics investigation which had begun in January of that year.

Published on: December 6, 2012

Court Denies Motion for Habeaus Corpus

by Stephen Bilkis

Bronx County Rape 1

This case involves the People of the State of New York and ex rel. C.T. relater against the respondent R.M. as the Warden of the Auburn State Prison. The case is being heard in front of the Supreme Court of Cayuga County.

A New York Criminal Lawyer said the case before the court is a habeas corpus proceeding that is being brought by C.T. who is an inmate of the Auburn Prison. C.T. was convicted of first degree rape, first degree robbery, and second degree assault in the Bronx County Court. The punishments for these crimes were 10 to 20 years for the rape charge, 15 to 30 years for the robbery charge, and 2 and ½ years to 5 years for the assault charge.

Published on: November 12, 2012

Appellant Seeks to Preclude Testimony of Lower Court

by Stephen Bilkis

On this proceeding, a real estate company and a man move for a relief, in which both of them seek inspection of the grand jury minutes, suppression of evidence, discovery and disclosure. The real estate company and the man are both charged under count one with attempted promoting prostitution in the third Degree.

A New York Criminal Lawyer said the City of New York’s proof consisted of the testimony of two undercover police officers. The first undercover officer testified that when he entered in the real estate’s office with another undercover officer and spoke to a real estate agent, he indicated that he wanted to rent a house in the neighborhood. The real estate agent arranged to show a house to the undercover officer. While walking to the house, the real estate agent explained that the owner wanted the house to be used for commercial purposes. The undercover officer speaks with the agent in Spanish language explaining that it would not be a problem because he was in the people’s business and that the house would be the house of prostitution. A Long Island Criminal Lawyer said the real estate agent then allegedly explained to the undercover officer that the house they were going to see would not be suitable for that purpose because it had recently been used as a house of prostitution. It had been closed down by the police, with extensive media coverage. The real estate agent said that he would try to find another house that would be more suitable.

Afterwards, the undercover officer returned to the real estate’s office. On that occasion, the original real estate agent was assisted by the man who was introduced to the undercover officers as being a real estate agent who had some prior knowledge with that kind of business. The man suggested a house that was in a secluded area.

Published on: October 31, 2012

Defendant Claims Grounds for Indictment are Insufficient

by Stephen Bilkis

This is a case being heard in the Suffolk County Court. The case involves the People of the State of New York against the defendant K.M. The defendant has been accused of acting in concert with another in commission of the crimes of criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the first degree. K.M.has moved for the charges against him to be dismissed on the account that the indictment is defective and that it was not found on legally sufficient evidence.

Defendant’s Argument

A New York Criminal Lawyer said the defendant argues that the indictment is deficient as it fails to conform to CPL section 200.30, subdivision 7. This section requires that a plain and concise factual statement of each count must be made. It further states that the defendant must be clearly apprised as to the matter of the accusation that is made against him.

Published on: October 13, 2012

Court Decides Child Sex Abuse Case

by Stephen Bilkis

A New York Criminal Lawyer said the plaintiffs filed an appeal with the New York Appellate Court for the dismissal of their complaint against the defendants, who are police officers and government officials, on the grounds of absolute and qualified immunity.

he appellants sued the respondents because of their wrongful investigation, arrest and imprisonment by the law enforcers for the commission of criminal offenses, namely, kidnapping, rape and murder. The defendants raised the defense of qualified and absolute immunity in the performance of their official duties for the conduct of their police investigations that led to the arrest and incarceration of the plaintiffs.

The plaintiffs are parents under investigation for child abuse, child molestation and occult-related rape and murder for several years already. One of the defendants, an employee of the Texas human services, was assigned to their case. The parents of the plaintiffs file complaints for sex abuse allegations made by the latter to their children. This caused the children to live in a foster home where another defendant meets them on a monthly basis. The plaintiffs are a couple with separate children from their previous marriage. A Manhattan Criminal Lawyer said the male plaintiff was indicted with a criminal offense for allegedly sexually abusing one of his daughters. This prompted the emergency removal of their children from the plaintiff’s custody and where transferred to various foster homes. The other remaining defendant was the caseworker to one of the foster homes where the children resided.

Published on: October 5, 2012

Court Discusses Blockburger Test for Theft Case

by Stephen Bilkis

In this case, the appellant appealed his convictions and sentences for fraudulent sale of a counterfeit controlled substance, and felony petit theft. He argued that both charges arose out of the same acts, and that this double conviction should be barred by section 775.021(4)(a) and (b), Fla.Stat.

A New York Criminal Lawyer said the record of this case established that Appellant told an undercover officer that he had rock cocaine for sale. He sold the officer a substance which proved not to be cocaine. For the fraudulent sale, he was sentenced as a habitual offender to ten years in prison. For the felony petit theft, he received a consecutive two-year term on community control followed by three years on probation.

The Florida Legislature has announced its intent that there should be separate and multiple convictions for each statutory offense that is committed during the course of a criminal transaction or episode. In section 775.021(4)(b) the Legislature set out basically only two exceptions to this policy. Subsections 1 and 3 are encompassed by the Blockburger test: statutory offenses which require proof of all of the same elements of proof; and those that require fewer, but identical elements of proof, which are necessarily included in the elements of the greater offense. Subsection 2 excepts “degree” crimes, such as the various forms of homicide.

Published on: October 2, 2012

Court Discusses Mental Hygiene Law

by Stephen Bilkis

The accused husband and wife were charged with a violation of the Penal Law. They were arraigned and each pleaded not guilty. A New York Criminal Lawyer said on the same date the charge was amended to attempted petit larceny. The husband and his wife changed their pleas to guilty of the amended charge. The sentence was deferred pending a pre-sentence report and a medical examination pursuant to the Mental Hygiene Law, to determine if the accused husband and his wife were narcotic addicts.

Pursuant to the District Court’s order, the accused wife was examined by a doctor, and her husband was examined by a separate doctor, on March 8, 1973. The reports of the doctors certified that each of the accused was a narcotic addict, within the meaning of such term, as defined in the Mental Hygiene Law. Each of the accused denied being a narcotic addict. They both waived a jury and addiction hearings were held separately for each of the accused husband and wife.

The undisputed testimony is that each of the accused husband and wife has not used heroin for a period of over two years, and during that period of time, each has been on a State of New York approved program of methadone maintenance. The question before the District Court is to determine whether the complainants have met their burden of proving heroin addiction by a fair preponderance of the credible evidence despite the fact that the accused husband and wife admittedly have not used heroin (heroin possession) for over two years.

Published on: September 21, 2012

Court Listens to Drug Charges

by Stephen Bilkis

Defendant Riley M. was arrested and charged with criminal possession of a controlled substance in the seventh degree (drug possession) (Penal Law sec. 220.03), criminally using drug paraphernalia in the second degree (Penal Law sec. 220.50), loitering in the first degree (Penal Law sec. 240.36), resisting arrest (Penal Law sec. 205.30) and disorderly conduct (Penal Law sec. 240.20). The defendant said that, defendant now moves pursuant to CPL 170.30(1)(a) and 170.35(1)(a) to dismiss the complaint for facial insufficiency on the ground that possession of cocaine residue is not sufficient to sustain a charge of criminal possession of a controlled substance in the seventh degree.

The issue in this case is whether the defendant is entitled to his motion to dismiss on the ground that possession of cocaine residue is not sufficient to sustain a charge of criminal possession of a controlled substance in the seventh degree (drug possession )

Possession of Cocaine Residue