Criminal Procedure

Published on: January 21, 2013

Defendant Contends Constructive Possession Could Not be Established in Drug Case

by Stephen Bilkis

An undercover officer observed the accused hand a third party several glassines of heroin in exchange for money. When the officer solicited two glassines, the accused insisted that the alleged buyer first snort some heroin and, upon the officer refusing, the accused walked away without consummating that sale. When the backup team approached the accused, he ran, discarding 20 glassines of heroin during his flight. A New York Criminal Lawyer said this gave rise to charging the accused with criminal possession of a controlled substance in the third degree. When the accused was apprehended, he had an additional three glassines of heroin on his person and two $20 bills in his pocket. This gave rise to charging the accused with criminal sale of a controlled substance in the third degree. Eight glassines of heroin were recovered from the accused man’s underwear at the precinct. The accused testified that he was an addict who snorted several bags of heroin daily, that he carried the drugs only for his own use, that he had purchased, rather than sold, the heroin, and that he had resisted the advances of a stranger who turned out to be the undercover officer. The evidence sufficiently proves the charges. However, procedural concerns require a reversal of the criminal possession conviction.

A New York Criminal Lawyer said after summations and submissions of the final charges to the jury, the counsel requested submission of criminal possession of a controlled substance in the seventh degree as a lesser included drug offense of the third-degree possessory offense. The court refused, not on any statutory basis, but because the timing of the request contravened the court’s policy. The record supports the defense counsel’s representation that, in fact, he had previously indicated to the court’s Law Secretary that the request might be made, but that counsel would have to hear the accused man’s testimony first. The complainant concedes that if the request had been timely made, the accused would have been entitled to the charge. Although it is manifestly preferable that both counsel know all the charges to be submitted to the jury before summations, the statute appears to authorize such request to be made by counsel at any time prior to the submission of the case to the jury, and the Court of Appeals has characterized this as a general rule, which also reflects the practice in the Second Department. In the present case, there is no indication that the timing of the request manifested an abusive practice, or that granting it would have prejudiced the complainant. Under the circumstances of the case, the charge should have been given to the jury. In reversing and remanding this charge for trial, the remaining charge of which the accused was convicted remains unaffected, insofar as it depended on a different item of evidence.

In one of the heroin related cases, as a result of his alleged sale of heroin to a confidential informant in two controlled buys and his heroin possession at the time of his arrest for those sales while on his way to a third such transaction, the accused was charged by indictment with, among other things, five counts of criminal sale of a controlled substance in the third degree. Following a hearing, a New York Drug Possession Lawyer said the County Court denied the accused man’s pretrial motion to suppress all evidence resulting from his warrantless arrest, finding that the police had probable cause to arrest him. The accused was then convicted as charged following a jury trial. The County Court sentenced him as a second felony offender to five concurrent prison terms of 11 to 22 years and he now appeals.

Published on: January 21, 2013

Defendant Contends Court Erred in Imposing Consecutive Sentences

by Stephen Bilkis

An appeal was filed by the defendant who was convicted with the crimes of murder and criminal possession of a weapon. He alleged that the court erred in its decision to impose consecutive sentences for the indictments he committed claiming that the accused acted with a singular intent.

The Supreme Court, holding the recent decisions of the Court of Appeals, the determining factor to review the legality of consecutive sentences is “whether separate acts have been committed with the requisite criminal intent.” Consequently, the Court ruled that there was no overlap of the statutory elements of the crimes committed by the appellant, thus, affirming the lawful imposition of consecutive sentences.

A New York Criminal Lawyer said there were two resident gangs at Manhattan who had several altercations among its gang members. One group was composed of the defendant, his sibling and a friend while the other group was a street gang, whose two members were the victims in a shooting incident that caused filing of the felony case against the appellant. Several hours prior to the shooting confrontation, the two groups had encounters and thereafter physical altercations commenced among its gang members. One of the witnesses testified that she saw a gun being carried by the accused at that time of the altercation. After the lapse of a few hours, the defendant moved toward the victim, who was accompanied by other gang members. The group of the victim walked away from the offender to avoid any untoward incident. However, the defendant then took his gun from his shorts and chased down the victim and shot the two victims who died of gunshot wounds.

Published on: January 21, 2013

Court Discusses Dual Sovereignties Doctrine

by Stephen Bilkis

In April, 1973, as a result of a joint major Federal-State narcotics investigation, an indictment was filed against defendants #1, 2 &3, along with 10 other large-scale heroin merchants, for conspiracy to violate Federal drug laws. To support the conspiracy count, covering a period from May, 1971 until the filing of the indictment, 10 particular incidents, including meetings and drug deliveries, were specified as overt acts. A number of substantive drug crimes of heroin possession were also charged.

A New York Criminal Lawyer said that, the instant appeals arise out of a separate concurrent State prosecution in which the three defendants were charged with sale and heroin possession of dangerous drugs. The indictment states that on each of January 8, 12, and 22, 1973, defendants #1,2 &3 possessed and sold over 16 ounces of heroin. These sales had neither been specified as overt acts of the Federal conspiracy nor had they been the subject of the substantive counts in that indictment.

The Federal charges were disposed of first. Defendants 1 & 3 pleaded guilty, among other counts, to conspiracy. Defendant #2,, on the other hand, went to trial and was found guilty on all counts charged. The evidence at that trial although not mentioned in the indictment included testimony concerning the three January drug sales that are the subject of the State prosecution. All three defendants received substantial Federal sentences.

Published on: January 20, 2013

Mental Health Facility Refuses to Admit Mentally Ill Defendant After Acquitted from Crime

by Stephen Bilkis

The director of mental health division refused to admit the petitioner who was acquitted from her criminal charges for petit larceny by reason of insanity. The district court rendered a commitment order of the insane person at a mental health facility of the Florida state. However, the director refused to admit the petitioner raising the issue of danger that would be cause by the accused towards individuals she may be in contact with. The judge sought to show cause from the medical director before the court for failure to follow the commitment order it issued.

In response, a motion to dismiss was filed by the director. A New York Criminal Lawyer said he alleged that the criminal cannot be committed in the mental health facility unless she is civilly committed pursuant to the provisions of the law. The court, on the other hand, averred that the acquitted felon of petit larceny cannot be discharged since she is manifestly dangerous to the peace and safety of the people that she may be in contact with, which warrants her admission to a mental health facility instead. The refusal of the director to admit the petitioner resulted to the imprisonment of the latter at a detention center that caused danger to herself and others.

The Court found that the provisions of the statute pertaining to non-admittance of the acquitted defendant of petit larceny by reason of insanity were unconstitutional and is considered ineffective and inapplicable against the petitioner. It can be established that the due to the insanity of the accused her discharge or release cannot be warranted since she is a danger to herself and others, thus, admission to a mental health facility was deemed necessary. A New York Criminal Lawyer also said the court also ruled that the director of the mental health services admit the defendant for hospitalization and treatment without the occurrence of civil commitment proceedings.

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 19, 2013

Court Discusses Legal Elements of Rape Crime

by Stephen Bilkis

On December 10, 1980, two men armed with a shot gun entered a fast food restaurant in Nassau County. They threatened the employees with bodily harm if they did not hand over the cash in the cash box. When the two female employees handed to the two armed men all the cash from the cash box, the men forced the women to go outside the restaurant. They forced the women to ride in their car which was parked outside the restaurant.

A New York Criminal Lawyer said the two armed men drove for twenty minutes from the fast food restaurant in Nassau County to a dead end street somewhere in Suffolk County. During the drive, the men took turns feeling up the women’s skirts and shirts. The men fondled the women’s breasts and sex organs.

When they got to the dead end street in Suffolk County, the men took turns raping the two women. When the men were exhausted, they threatened the women and their families with death should they report the rapes to the police. The two men then let the two women go.

Published on: January 19, 2013

Court Discusses Dual Sovereignties Doctrine

by Stephen Bilkis

On the morning of December 15, 1971 two men and a woman were observed entering the New York residence of the husband and his wife carrying empty shopping bags or, in Grant’s case, with a collapse valise. When they departed, the three left with their once empty receptacles, filled. They were then followed to different distribution points where they were arrested. Searches conducted incident to the arrests revealed that they each had over one pound of heroin possession. A subsequent search of the couple’s residence produced large amounts of narcotics, money, weapons and drug packaging materials.

On December 28, 1971 the three were indicted by the Bronx County Grand Jury which, by five indictments, charged the three and the wife with criminal law violation through crack possession. The indictments also charged one of the three complainants with two counts of attempted murder, two counts of reckless endangerment and possession of a weapon; and the complainant couple with two counts each of possession of weapon and criminally using drug paraphernalia.

Thereafter, a New York Criminal Lawyer said in November, 1972 the complainants and 14 others were indicted by a Federal Grand Jury for conspiring to distribute and possess with the intent to distribute narcotic drugs. The indictment set forth 18 overt acts that the complainants allegedly committed in furtherance of the conspiracy, the last of which stated that the three together with the husband did distribute and possess with intent to distribute a total of eight and one-half (8 1/2) kilograms of heroin hydrochloride, and, in addition, did obtain $70,000 income and resources from prior heroin distributions.

Published on: January 18, 2013

Defendants Charged with Fraud By False Promise

by Stephen Bilkis

In this criminal case, in 1986 although the installation of individual water meters was required in commercial and industrial buildings, 630,000 one and two family homes were unmetered and billed for water on an arcane basis unrelated to usage and predicated on property frontage. The City decided to meter these homes and to do so through a municipal installation project rather than by requiring the individual homeowners to install them. A New York Criminal Lawyer said the City would use a competitive bidding process, and award contracts according to the boundaries of the City’s community boards. As is common in such contract bidding processes, the City prepared bid packages for prospective bidders. In addition to technical information and cost estimates, the bid package informed prospective bidders that they would be required to calculate labor costs in accordance with Labor Law Section 220, which requires contractors performing public works projects to pay the workers the prevailing wage. The bid packages let out in 1989 and 1990 also required that the contracting party would have to perform certain work known as pre-plumbing work. In essence, the contracts with the City would require that pre-plumbing work be supervised by a licensed master plumber.

After conducting pre-bid conferences, the City circulated an addendum to the bid specifications which set forth the specific wages that the bidders would be required to pay their employees. The defendants received this addendum. After the bids were publicly opened, the lowest bid was determined and the contracts were awarded to the defendants. The defendants executed formal contracts, to which were annexed the bid information and the wage schedules, which were also incorporated by reference. Each contract provided: The wages to be paid and the supplements to be provided, for a legal day’s work, to laborers, workmen or mechanics employed by the Contractor shall not be less than the prevailing wages and supplement required to be paid to such employees, as ascertained and prescribed by the Comptroller in the Specifications attached hereto.

A New York Grand Larceny Lawyer said that, the indictment charges larceny by false promise, grand larceny by false pretenses, scheme to defraud, and filing of a false instrument, conspiracy, and perjury. The thrust of the indictment is that the defendants never intended to comply with the prevailing wage and pre-plumbing master plumber requirements. Among other evidence which was presented to the Jury was that the defendants calculated their bids based on piecework rather than hourly costs, that they promised workers the higher of piecework or hourly rate, but only paid a piecework rate that resulted in a lower wage than an hourly rate at the prevailing wages, that the defendants arranged with a licensed plumber to falsely make it appear that a licensed plumber was supervising pre-plumbing work, and that the defendants submitted false and perjurious forms to the City certifying they had complied with the contracts.

Published on: January 17, 2013

Court Unravels Complicated Larceny Case

by Stephen Bilkis

The charges in this case arise from five separate incidents, beginning in July 1986. On July 3, 1986, a man representing himself as an executive of a foreign branch of General Electric Corporation, asked that $5,000 in travelers’ checks be prepared and delivered to an associate, K.D. Thereafter, defendant appeared at the offices of General Electric, identifying himself as K.D., and as KD, signed five Citicorp travelers’ checks purchase agreements, one for each of five $1,000 packets of checks, then signed many of the checks in the upper left hand corner, as required of purchasers. A New York Criminal Lawyer said when it was discovered a week or two later that there had been no authorization for the checks, most, if not all, of the checks had been negotiated at various metropolitan locations. A New York Grand Larceny Lawyer said that, defendant was convicted of one count of grand larceny in the second degree for stealing property having an aggregate value in excess of $1,500, three counts of forgery in the second degree and three counts of criminal possession of a forged instrument in the second degree with respect to the travelers’ checks and of forgery in the second degree with respect to the purchase agreement.

Thereafter, defendant stayed at the Days Inn in Manhattan registering as KD, and advancing $140 as a deposit. During his stay, he presented the cashier with a purchase order from the Metropolitan Life Insurance Company, providing that Met Life was to be billed for the room, taxes and incidental expenses. Days Inn refunded defendant his initial deposit and the bill for his four day stay ($819.67) was never paid since defendant was neither employed by Metropolitan nor authorized to present such a purchase order. A Long Island Criminal Lawyer said that, defendant was convicted of criminal possession of a forged instrument in the second degree.

Thereafter, defendant was arrested at the Omni Park Central Hotel when the police traced his car to that location and learned a K.D. was registered there. A Chevron Gulf credit card belonging to RG was recovered from defendant. Upon his arrest, defendant was charged with forgery in the second degree, criminal impersonation in the second degree, and theft of services, all arising from the Days Inn incident. At the trial, a New York Criminal Lawyer said that, defendant was acquitted of criminal possession of stolen property in the second degree relating to the possession of the Chevron credit card.

Published on: January 16, 2013

Consent to Search Questioned

by Stephen Bilkis

Seldom has this Court considered a more spectacular or bizarre case than this habeas corpus petition of an experienced Texas criminal lawyer, former mayor of the City of Pasadena, Texas, who was found guilty in Texas State Court of being the mastermind and accomplice in an especially brutal and horrible assault and robbery, but who contends that he was invalidly convicted in violation of federal constitutional rights.

A New York Criminal Lawyer said that, S.H. is presently serving a sixty-year sentence imposed by the Criminal District Court of Harris County, Texas. A jury found him guilty in a separate trial as an accomplice to the crime of robbery by firearms, committed by principals J.Y., C.S., and S.H. SH has appealed from the denial of his petition for habeas corpus by the United States District Court for the Southern District of Texas, Houston Division.

On appeal Hoover has asserted two claims of error to the denial below of his habeas corpus petition based on federal constitutional grounds. First, he contends that the Court erred in refusing to sustain alleged violations of his Fourth and Fourteenth Amendment rights to be free from unreasonable search and seizure. The State Trial Court admitted into evidence two diamonds seized from SH’s home during a nighttime search conducted by the Houston Police Department. SH argues that the search was made without his voluntary consent, by police officers acting under color of a search warrant which was invalid. Secondly, SH asserts that his right to confrontation under the Sixth and Fourteenth Amendments was infringed when the State Trial Court admitted into evidence the oral confession of alleged principal and co-indictee CS. The confession, which also implicated SH as an accomplice, was admitted during the testimony of Officer C. V. Stone to whom CS confessed, pursuant to a well-established Texas exception to the hearsay rule which allows the confession of a principal to be admitted at the trial of an accomplice to prove the principal’s guilt, proof of such guilt being a necessary prerequisite to conviction of an accomplice to the offense.