Criminal Procedure

Published on: December 24, 2012

Court Discusses Application of Harmless Error Rule in Theft Case

by Stephen Bilkis

The Facts of the Case:

Petitioners were charged with breaking and entering with intent to commit a felony, to-wit: grand larceny. At a jury trial, petitioners requested an instruction on breaking and entering with intent to commit a misdemeanor, petit larceny, but this request was denied. Thereafter, the jury found the petitioners guilty as charged and the criminal court sentenced each of them to fifteen (15) years. On appeal, the District Court of Appeal, Second District, affirmed the guilty verdict holding that the proof of guilt was overwhelming and that any error committed by the court’s refusal of the requested instruction on the alleged lesser offense was harmless.

The case is now before the court for certiorari.

Published on: December 23, 2012

Court Discusses the Elements of Burglary

by Stephen Bilkis

A man entered a home in Dade County, Florida. A New York Criminal Lawyer said he did this in the middle of the night without the knowledge and consent of the two people who lived in the premises, a brother and a sister. The man ransacked the house and took away with him a color television set. He was later apprehended by the police.

Charges of larceny and burglary were brought against him. The larceny charge was brought for the taking of the television while the charge of burglary was charged for breaking and entering into the house owned by another person for the purpose of committing a crime.

The criminal information filed against him alleged that sometime on May 9, 1976 in Dade County, the man unlawfully entered the house owned by VA, the owner and custodian of the home with intent to commit the offense of petit larceny.

Published on: December 22, 2012

Court Upholds Possession with Intent to Distribute Charges

by Stephen Bilkis

The defendant’s convictions arose from a series of drug transactions which began when a certain person contacted another person and informed the latter that he had heroin for sale. The former was unaware that the latter was a confidential informant for the Drug Enforcement Administration (DEA). The parties and co-defendant agreed that the former would sell the informant 25 ounces of heroin for $6,000 per ounce (Drug Possession). While the co-defendant was in Mexico he ran into the defendant who offered to drive him to Texas. He agreed and the two men drove to the border. As they approached the border the co-defendant told the defendant that he wished to walk across the border and would meet the defendant on the United States side. The defendant drove the vehicle across the border while co-defendant walked across carrying the one gram sample of heroin.

A New York Criminal Lawyer said that, the defendant and his co-defendant drove to the informant’s apartment where they met the informant and an Agent outside the apartment. The defendant and the Agent remained outside in their respective vehicles while co-defendant and the informant went inside. When the two men left the apartment the Agent saw co-defendant hand informant a piece of paper later found to contain .12 grams of heroin. The informant gave the paper to the Agent. Co-defendant, the informant and the Agent then discussed the purchase of a test ounce and the full 25 ounce shipment. The defendant drove the co-defendant to another apartment where he met with the certain John doe while the defendant remained outside in the vehicle.

Later that evening co-defendant and the informant took one ounce of heroin to the Agent’s motel room and sold it to him for $5,000 cash. Co-defendant returned to Mexico where he processed the remaining ounces of heroin. The defendant came into the apartment while this processing was being done. The next morning co-defendant secreted heroin in the stereo speaker of his vehicle. After doing so he asked the defendant for help in replacing the screws. The two men then drove to the informant’s apartment in the United States. While en route into town co-defendant advised the defendant that what he was doing was not honest and that he should not get involved in similar “deals”. When co-defendant and the defendant arrived at the informant’s apartment the defendant carried the heroin into the apartment. Later the three men left for the Agent’s motel with the defendant driving. Co-defendant, believing they were being followed, directed the defendant to return to the informant’s apartment. Co-defendant and the informant then drove to the Agent’s motel to deliver the heroin and the defendant left. Co-defendant was arrested as he delivered the heroin to the Agent. Defendant was arrested near Hidalgo, Texas.

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 21, 2012

Doctor Charged with Negligently Prescribing Opiates

by Stephen Bilkis

This action concerns a young woman who at an early age became addicted to drugs. In 2005 when she was 18, she became a patient of the accused orthopedist and employee of orthopedic rehabilitation center for treatment of lower back pain and, a month later, for left ankle pain. From May 2005 through January 2007, the orthopedist prescribed large amounts of Vicodin and Methadone for the complainant woman’s pain. It is claimed that the multiple prescriptions by the orthopedist were improper, illegal and negligent and caused both physical and mental injury to the woman separate and apart from her earlier and continued addictions to illegal drugs such as heroin and cocaine and illegally obtained drugs such as Oxycodone.

Before, the Court is a motion for summary judgment by the accused parties. It is supported by an affirmation from a Board Certified Orthopedist. He first reviews the allegations made by the woman against the orthopedist. They include negligently and unjustifiably prescribing opiates to the woman and, by doing so, aiding her drug habit and causing her addiction to these opiates, improperly prescribing Methadone without a proper license, and failing to refer the woman to a pain management specialist.

A New York Criminal Lawyer said the Board Certified Orthopedist states, with a reasonable degree of medical certainty after reviewing all the relevant medical records and deposition transcripts, that the orthopedist committed no departure from good and accepted medical standards in his treatment of the woman, which was appropriate in every respect. He adds that as a licensed physician he was authorized to treat the woman and prescribe narcotic medications as he did without any negligence or medical malpractice.

Published on: December 20, 2012

Court Discusses Intent in Criminal Possession of Controlled Substance Charges

by Stephen Bilkis

In this drug crime case, defendant was convicted after a jury trial of criminal possession of a controlled substance in the third degree and unlawful possession of marijuana. A New York Criminal Lawyer said on this appeal, defendant contends that his conviction for criminal possession of a controlled substance in the third degree should be reversed because the People failed to present legally sufficient evidence showing his intent to sell four small packets of heroin found in his pocket.

A Washington Heroin Possession Lawyer said that, viewed in the light most favorable to the prosecution, the evidence presented at trial established that at approximately 1:00 A.M. on July 21, 2007 the clerk at the store located on Main Street in the Village of Hudson Falls, Washington County called the police to report that someone was outside the store selling drugs. She placed that call after two separate patrons of the store so informed her. One of those patrons displayed to her what appeared to be a bag of marihuana.

The Patrolman responded to the call. On several occasions earlier that night between 11:00 P.M. and 1:00 A.M. the Patrolman had observed defendant, with whom he was already familiar, standing outside the store. When he arrived at the store in response to the clerk’s call, the Patrolman observed defendant coming out of the store with a six-pack of beer. The Patrolman approached defendant and accused him of selling drugs. At Patrolman’s urging, defendant produced a sock containing seven small bags of marihuana. The Patrolman then searched defendant, discovering four individual packets of heroin in his pocket (drug possession).

Published on: December 18, 2012

Court Discusses Elements of Grand Larceny

by Stephen Bilkis

A man broke into and entered a dwelling house. Once inside, he committed grand larceny by taking away from the premises properties belonging to the owner of the dwelling house which amounted to more than one hundred dollars.

The prosecutor was charged under an information with two crimes: the breaking and entering a dwelling with intent to commit grand larceny; and grand larceny. The man pleaded not guilty and he was tried before a jury. He was later convicted by that jury for the two crimes of breaking and entering with intent to commit grand larceny and grand larceny. A New York Criminal Lawyer said the trial court judge sentenced the man to imprisonment of two years for the grand larceny and one year for the breaking and entering with intent to commit grand larceny, both sentences to be served concurrently.

The man appealed the conviction and the sentences imposed upon him. The sole ground of his appeal was that he should not have been charged, tried, convicted or sentenced to two separate crimes of breaking and entering to commit grand larceny and grand larceny. He claims that the grand larceny should be comprehended in the one charge of breaking and entering with intent to commit grand larceny because the grand larceny was just an element or a facet of the crime of breaking and entering.

Published on: December 17, 2012

Court Decides Parole for Sex Offender

by Stephen Bilkis

Petitioner is an inmate at a correctional facility at Franklin County. He filed the petition for a Writ of Habeas Corpus to question his imprisonment under the custody of the New York correctional services wherein the accused asserted the limitations and conditions set for his particular residence amounted to question his custody by the law enforcement agency and he further alleged that his period of assessment for his final parole had already expired that granted his release to a parole supervisor.

A New York Criminal Lawyer said in 1997, the inmate was sentenced for incarceration for a period of 7 to 14 years. Later in 2006, he was released under the parole supervision but was afterward revoked then again restored that placed him at a drug treatment campus. Then a year after, petitioner violated his community-based parole supervision, as such, he was returned to the custody of correctional services as a parole violator. He then again violated his most recent release under parole supervision in year 2008. He had several counts of violation of release and such report was served and given to him at a county jail where he was detained for new criminal charges.

A final parole hearing was conducted for the revocation of petitioner’s final parole wherein he pleaded guilty for the violation of the conditions set for his release under parole supervision, specifically, a crime for possession of marijuana found inside his room (drug possession). The defendant’s parole was revoked and was given a delinquent time assessment, which will expire after 16 months from the date of the revocation hearing. During the period of assessment, the felon had existing rape charges against him and was later on convicted for crimes of sexual misconduct and endangering the welfare of a child, as such, petitioner was declared as a “sex offender.”

Published on: December 16, 2012

Court Discusses Alleged Heroin Conspiracy

by Stephen Bilkis

A Georgia Intent to Distribute Lawyer said that, the defendant appeals his conviction after trial to a jury for conspiring to possess cocaine (drug possession) with intent to distribute it, in violation of 21 U.S.C.A. § 846, and to distribute it, in violation of 21 U.S.C.A. § 841(a)(1). This court recently affirmed an earlier conviction of defendant for conspiracy to possess and to distribute heroin. On the present appeal a Georgia Heroin Lawyer said that defendant contends that the government arbitrarily has carved a single conspiracy to deal in narcotics into separate heroin and cocaine conspiracies in violation of his Fifth Amendment right against twice being placed in jeopardy for the same offense.

A Georgia Heroin Lawyer said that, the government’s proof in the heroin conspiracy trial established that defendants arranged sales of heroin for their cocaine customer a Detective, who unknown to them was an undercover DEA Agent. Co-defendant, who pled guilty, and the Detective testified against defendant in both trials. The government presented to the jury portions of defendant’s own testimony from the heroin conspiracy trial in the trial on the cocaine conspiracy charge. During July 1976, conspiratorial negotiations involving cocaine and heroin went on simultaneously. A New York Criminal Lawyer said the major events proven in defendant’s trial on the heroin conspiracy charge which we discussed in our earlier opinion affirming that conviction, were also central to the government’s proof against defendant’s in the trial on the cocaine conspiracy charge.

The issue in this case is whether defendant’s claim for double jeopardy should be granted.

Published on: December 15, 2012

Court Discusses Intent in Petit Larceny Charges

by Stephen Bilkis

The Facts of the Case:

The appellant was charged with the criminal act of breaking and entering with intent to commit a misdemeanor, viz.: petit larceny. The information charged three elements: unlawful breaking, unlawful entry and the intent to commit petit larceny. A New York Criminal Lawyer said the jury found appellant guilty of two of the three elements set forth in the accusatory pleading by finding that he had made an unlawful entry with intent to commit petit larceny or entering without breaking with intent to commit petit larceny. Clearly, the verdict found defendant guilty of a crime included within the offense charged by the accusatory pleading.

The Issue of the Case: