Criminal Procedure

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 14, 2013

Accused Refused on the taking of DNA Samples Because it Would be Tantamount to Giving Evidence Against Himself.

by Stephen Bilkis

Seven men were grouped together outside a house. They were talking loudly together and drinking. One of the neighbors called the police and so two uniformed police officers were dispatched to the scene. The police officers had their police badges and did not have their guns drawn.

As they were speaking with the group of seven men, one of the men stood up and pulled up his pants by his waistband and walked away in the direction of the house. A New York Criminal Lawyer said when the man adjusted his pants, a small plastic bag fell from his pant leg. The police officer saw the plastic bag and it was a resealable bag contained dried herbs. The police officers seized the plastic bag from the ground and smelled it and they thought it was marijuana. Subsequent testing revealed it to be marijuana as suspected by the police officers (marijuana possession).

They followed the man who had gone into the house. The police officers knocked on the door and the residents of the house opened the door to the police officers and let the police officers in to the house. When the police officers went into the house, they noticed that a group of men were also drinking. Their bottled alcoholic beverages were contained in a cooler which lay open on the floor.

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 10, 2013

Defendant Claims He Was Not Given Adequate Notice of Grand Larceny Charges

by Stephen Bilkis

In this criminal case, the proof established that in the five-year period from 1984 to 1989, the defendant represented himself as a spiritual healer, generally charging people $20 per consultation. During the consultations, the defendant purported to transform himself into various spirits who would offer advice and claim that they could cure illnesses. A New York Criminal Lawyer said the defendant, acting through these spirits, induced victims to lend him sums of money, sometimes in the thousands of dollars, which “loans” he never repaid. The defendant also told some of his victims that he was an agent of the Federal Bureau of Investigation, using this false claim as a further means of obtaining money from them.

A Queens Grand Larceny Lawyer said that, defendant was convicted of grand larceny in the second degree, grand larceny in the third degree (four counts), scheme to defraud in the first degree, criminal impersonation in the second degree (four counts) and fortune telling (five counts), upon a jury verdict, and sentencing him to an indeterminate term of 3 to 9 years imprisonment for grand larceny in the second degree, four indeterminate terms of 1 1/2 to 4 1/2 years imprisonment for grand larceny in the third degree, an indeterminate term of 1 to 3 years imprisonment for scheme to defraud in the first degree, four definite terms of one year imprisonment for criminal impersonation in the second degree, and five definite terms of 60 days imprisonment for fortune telling, with all terms of imprisonment to run consecutive to each other.

A Queens Grand Larceny Lawyer said that, the defendant claims that he was not given fair notice of the grand larceny charges against him to enable him to prepare an adequate defense to those charges. He contends, in essence, that proper notification of the charges should not be reduced to a matter of guess work, and that a conviction on any count for which the defendant has not been given proper notification of the nature of the charge should not be countenanced. Specifically, neither the indictment, the bill of particulars, the Jury minutes supplied to the defendant which were redacted as to the victims’ names, the People’s opening statement, nor much of the trial, served to fully inform the defendant as to which individual complainants corresponded to the various counts of larceny.

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 6, 2013

Defendant Contends He Was Improperly Sentenced in Grand Larceny Offense

by Stephen Bilkis

This is a proceeding brought pursuant to Article 78 of the CPLR to prohibit respondent Covington, a Justice of the Supreme Court, Bronx County from vacating petitioners’ convictions and the sentences imposed thereon in violation of Article 440 of the Criminal Procedure Law, and to prohibit respondents J.C. and P.G., District Attorney, Bronx County, from further prosecution of the petitioners on felony charges.

A New York Criminal Lawyer said on July 7, 1987 petitioners pleaded guilty to attempted grand larceny in the third degree. All parties apparently thought that defendants were pleading guilty to an “E” felony, since grand larceny in the third degree is a “D” felony. Accordingly, defendant Wilson was sentenced as a predicate felon to 1 1/2 to 3 years in prison.

A Bronx Grand Larceny Lawyer said that, attempted grand larceny in the third degree became a “D” felony on November 1, 1986. At the time of the commission of the acts alleged in the indictment, May 14, 1986, grand larceny in the third degree was an “E” felony and attempted grand larceny in the third degree an “A” misdemeanor. Thus, the defendant was improperly sentenced to felony time that is 1 1/2 to 3 years in prison. A Bronx Grand Larceny Lawyer said that, petitioner W. commenced his sentence. Following the discovery of the error, the trial court vacated the sentence and conviction and reinstated the original felony charges. On February 23, 1988 this court granted a stay of the prosecution pending determination of this Article 78 proceeding.

Published on: January 5, 2013

Defendant Claims Double Jeopardy for Drug Charges

by Stephen Bilkis

A complainant man seeks an order to prevent the justices of the Supreme Court and the district attorney from proceeding to try him on an allegation returned against him by the grand jury.

A New York Criminal Lawyer said the indictment charges the complainant and another man with various degrees of possession of a dangerous drug. The complainant is charged with first degree of possession of 16 ounces and more of heroin, fourth degree of possession of a narcotic drug with intent to sell and sixth degree of possession of a dangerous drug.

The complainant, the other man and several others were also prosecuted under a nine-count federal charges, in which the complainant was charged with counts one and two of possession with intent to distribute and distribution of one kilogram of heroin (heroin possession), attempt to distribute half a kilogram of heroin and conspiracy to distribute and to possess with intent to distribute quantities of heroin.