New York City

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: November 2, 2012

Defendant Claims Court Erred in Not Allowing Key Testimony

by Stephen Bilkis

The People of the State of New York are the respondents and Zachary R. Gibian is the appellant in this case being held in the Supreme Court of the State of New York, Appellate Division, Second Judicial Department. The defendant is appealing a judgment made by the Supreme Court of Suffolk County that was issued on the 17th of January, 2007 and convicted him of murder in the second degree.

Defendant’s Argument

A New York Criminal Lawyer said the defendant identifies three grounds for this appeal to reverse his conviction. The first is for the preclusion on the grounds of hearsay of the statements that were made by the defendant’s mother. The second is juror misconduct during deliberations. The third is the summary curtailment of the closing statement made by the defense counsel.

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

Published on: September 13, 2012

Court Discusses Plea Bargain

by Stephen Bilkis

An undercover police officer posed as a buyer of cocaine which was clandestinely sold at a fast food joint. The undercover police officer was able to buy six small bags of cocaine on six separate occasions. With the cocaine bought from the fast food joint, the police officers had probable cause to apply for a search warrant and to arrest the employees of the fast food joint.

A New York Criminal Lawyer said the police officers arrested the workers of the fast food joint and they searched the fast food joint and found seventy-eight bags re-sealable bags filled with white powdery substance which was later tested and found to be cocaine. The seventy-eight bags of cocaine were located in various areas of the fast food joint and some were found in the pockets of the employees of the fast food joint.

The Grand Jury handed down an indictment of twenty-one counts of criminal cocaine possession (drug possession) and sale. After the arraignment, the manager of the fast food joint was told by his lawyer that under the laws in effect at that time, the sentence he would most likely be given if proven guilty would be one to three years for every count which would amount to an indeterminate sentence of about eight to twenty-five years.

Published on: September 8, 2012

Defendant Questions Sufficiency of Evidence

by Stephen Bilkis

An undercover police officer went to buy drugs. He stayed at a street corner waiting for someone to approach him. The accused approached the police officer and they talked for a while. The accused asked the police officer if he was looking to score some crack. The police officer said that he was looking for crack. A New York Criminal Lawyer said the accused told the police officer that he too was looking to buy some crack. They waited a bit more where they were but no one approached them.

The two decided to take a walk to a busier street corner. As they waited there another man (the co-accused) came up to them and asked them if they were looking for anything in particular. When the undercover police officer and the accused said they were, the co-accused gave them an address where they could go. The co-accused told the two men to wait inside the building.

The undercover police officer and the accused then walked all the way to the address given by the co-accused and when they got there, they went inside the building and waited. The co-accused later appeared and went up one flight of stairs, down the hall into the rear of the building.

Published on: September 5, 2012

Court Orders New Trial

by Stephen Bilkis

Plaintiff commenced this action seeking damages for false arrest, false imprisonment and malicious prosecution, based upon his arrest for assault which later became a murder charge for acts allegedly committed. Plaintiff was incarcerated for 333 days. The charges remained pending for nearly 8 more months after plaintiff was released from custody. A New York Criminal Lawyer said that, all charges were dismissed on the motion of the Bronx County District Attorney. After trial in this action, the jury rendered a verdict in favor of plaintiff, awarding damages to plaintiff in the sum of 2.7 million dollars for false arrest and 7.1 million dollars for malicious prosecution.

A Bronx Criminal Lawyer said that, defendant, the City of New York (City) now moves pursuant to CPLR 2221 and 4404 (a) for an order (1) setting aside the jury’s verdict on liability as a matter of law, or, in the alternative, (2) setting aside the jury’s verdict and ordering a new trial as the jury’s liability verdict is against the weight of the evidence, or, in the alternative, (3) dismissing the malicious prosecution claim for failure to prove proximate cause, or, in the alternative, (4) setting aside the damages verdict and ordering a new trial on damages as the jury award was excessive and contrary to the weight of the evidence, and for other related relief.

Plaintiff opposes the motion. A New York Criminal Lawyer said the City’s renewal of its trial motion to dismiss the complaint for failure to establish a prima facie case or for a directed verdict is denied as the court adheres to its original decision on the record.

Published on: August 18, 2012

Court Discusses Conspiracy Charge

by Stephen Bilkis

The two accused men, charged with the crimes of Criminal Sale of a Dangerous Drug and Conspiracy, move to dismiss the indictment on the grounds that the prosecution puts them in jeopardy again for crimes of which they already have been convicted in another jurisdiction. They contend, in short, that their prosecution in Nassau County of the crime of Conspiracy included therein acts which are alleged in this indictment and thus fall within the proscriptions of the Criminal Procedure Law which prohibit such a second prosecution. The Court ordered a hearing on the contentions of the accused men and the facts and circumstances of the issues as testified to at the hearing.

A New York Criminal Lawyer said the accused men with others met the undercover Police Officer who was accompanied by an informer at a restaurant owned by one of the accused in Queens County Restaurant. There was a discussion concerning the buying and selling of cocaine and the accused men quoted prices to the undercover detective. An agreement was made the next day to meet at the same place for the purchase of 1/8 of a kilo and at the subsequent meeting the accused delivered the 1/8 of a kilo to the officer and received from him the sum of $4,000 as a payment. Having established a basis for doing business, the accused men and undercover officer, entered into another deal at a Restaurant for the sale of a kilo for $32,000. The actual sale for the kilo was made in Nassau County.

Subsequently, the accused men were indicted in Queens County charged with the crime of Criminal Sale in the First Degree, involving the $4,000 sale and the conspiracy which led up to that substantive crime. They were also indicted by the Nassau County Grand Jury for crimes involving the $32,000 sale, Criminal Sale of a Controlled Substance, Criminal Possession of a Controlled Substance (drug possession) and Conspiracy.

Published on: June 29, 2012

Court Discusses Issues of Discrimination and Equal Protection

by Stephen Bilkis

The Facts:

Sometime in 1977, defendant-one was indicted for the crime of Rape in the Third Degree, a criminal law violation; that defendant, over twenty-one years of age, engaged in a sexual intercourse with a female less than seventeen years of age.

A New York Criminal Lawyer said that sometime in March of 1978, defendant-two was under an eight count indictment; two counts of the indictment charged crimes of Rape in the First Degree; that defendant engaged in sexual intercourse with two females who were less than eleven years old.

Published on: May 30, 2012

Defendant Claims Plaintiff Recanted Her Statement

by Stephen Bilkis

The Facts:

Defendant, who was then 24 years old, had known the complaining witness, then 20 years old, for several years. Allegedly, on 24 April 1976, at the complaining witness’s home, following a visit with the complainant’s family and defendant’s mother, defendant told the complainant that he wanted to have sex, and upon her refusal, he forced her to engage in intercourse. A New York Criminal Lawyer said the complainant was later taken to a Hospital for examination, which was negative for the presence of semen.

On 28 April 1976, the complaining witness identified defendant to the police, in front of the complaining witness’s home, and defendant was arrested. In statements following the arrest, defendant admitted having had intercourse with the complainant but denied having used force. He claimed that the complainant had been angry over the fact that defendant had been seeing another woman.

Published on: April 23, 2012

Court Determines Child Custody Where Domestic Violence Present

by Stephen Bilkis

The couple was married in December 1989 and had always resided in New York during their marriage and their only child was born in July 1990. The parties resided in the City of Glens Falls. The husband was employed by an architectural firm and the wife remained at home to care for their son.

A New York Crirminal Lawyer said in June 1991, after the husband was laid off, the couple moved in with the husband’s brother in Rensselaer County. It was uncontested that the brother has suffered mental illness for many years and being treated with tranquilizers and has been hospitalized on numerous occasions. The husband admitted that his brother’s apartment was cramped, dirty, dangerous and had fleas which bit the child. Marital problems by and between the parties were intensified by their living conditions.

In August 1991, the wife left New York and took their son to Puerto Rico with her. She testified that she escaped to Puerto Rico in desperation due to her inability to acquire a safe environment in New York and the necessary medical care for her son. Because her mother and father both resided in Puerto Rico, the wife contended that she needed to live there in order to receive the emotional and financial support of her family.