Criminal Procedure

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 13, 2012

HIV Positive Defendant Charged With Biting Victim

by Stephen Bilkis

The parties of the case had a quarrel between them wherein the defendant had bitten the complainant during their squabble. A New York Criminal Lawyer said the People filed a motion to order the removal from medical records and non-disclosure of the HIV status of the victim from the defendant. The ground for such an order is based on the complainant’s right to privacy and confidentiality as opposed to the right of information by the defendant.

The court held that grant of the order to redact all references to the HIV status of the private complainant but sought to inform the defendant of such through a physician or health officer. The court ruled that the defense lawyer has the prerogative to disclose the sensitive information to his client but recommended that it be made through a medical doctor or health official.

The parties are residents at an apartment building and both lived in the same floor. In one incident, the defendant thrown anti-gay expressions towards the complainant and subsequently punched the victim’s face and body. Later, the parties had another argument that resulted to the biting of the defendant over the shirt of the complainant which caused the latter’s skin to break. The accused was also alleged to have possession of a knife and that he pushed himself inside the complainant’s apartment. The sister of the victim called 911 who informed the medical attendants that her brother is with HIV and such information was written down in his medical records during his medical treatment at the hospital.

Published on: December 12, 2012

Court Discusses Grand Larceny vs. Petit Larceny Charges

by Stephen Bilkis

A man knocked on an apartment door. He claimed to be delivering something for the resident in the apartment. He asked the resident for some personal identification. The resident of the apartment left the apartment door open and left the man at the door while she went inside the apartment to get her ID. A New York Criminal Lawyer with the apartment door left open, a television set can be seen which was put on a stand situated very near the open apartment door. On the floor near the television, there were sweaters scattered all over. The man took the TV and the sweaters on the floor.

The man was seen by another delivery man who was making a delivery in a nearby apartment at the same time. He saw the bogus delivery man go inside the apartment and leave holding the TV set and the sweaters. He also saw the bogus delivery man leave the apartment and ride a bike while carrying the TV set and the sweaters. The delivery man followed the bogus delivery man and saw that at the nearest corner, the bogus delivery man dropped the TV and the sweaters. He left them there on the street where they fell. And he rode the bike all the way to a nearby restaurant. At the restaurant premises, the bogus delivery man left the bike. He went to the parking area of the restaurant and rode in a car. The delivery man wrote down the license plate of the bogus delivery man’s car. When a police cruiser came by, the delivery man told them his story and gave them the license plate of the bogus delivery man. He also led them to the spot where the TV and the sweaters were dropped.

The bogus delivery man was later arrested. He was charged with two crimes in one information: he was charged with breaking and entering with intent to commit grand larceny and grand larceny. The bogus delivery man moved for a trial without a jury. The man was convicted with breaking and entering with intent to commit grand larceny but he was convicted only of petit larceny and not grand larceny because the prosecution failed to prove that the properties taken were valued beyond $100.

Published on: December 11, 2012

Court Distinguishes Between Petit Larceny and Felony Petit Larceny

by Stephen Bilkis

The state charged appellant with armed robbery and resisting a merchant. The jury found her guilty of the lesser included offense of petit theft and resisting a merchant. The trial court adjudicated her guilty of the two misdemeanors. At sentencing, however, the court reclassified her conviction pursuant to section 812.014(2)(c), based on her prior theft convictions. A West Palm Beach Petit Larceny Lawyer said that, appellant stipulated at pretrial that she had nine prior misdemeanor convictions. A New York Criminal Lawyer said the information, however, did not make reference to the prior convictions, nor did it charge her with a felony petit theft. On that ground, appellant contends that the trial court erred when it reclassified her petit theft conviction to felony petit theft.

The issue in this case is whether the Court erred in reclassifying appellant’s conviction of petit theft to felony petit theft (petit larceny).

Ina 1991 case, the court stated: A charging document must provide adequate notice of the alleged essential facts the defendant must defend against. In recognition of this concern, Florida Rule of Criminal Procedure 3.140(b) provides that an “indictment or information upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” The Court then referred to its prior opinion in a 1978 case: the Justice concluded for the Court that the felony petit larceny statute “creates a substantive offense and is thus distinguishable from section 775.084, the habitual criminal offender statute.” The felony DUI statute is indistinguishable in this regard. The Court concludes that the existence of three or more prior DUI convictions is an essential fact constituting the substantive offense of felony DUI. Having established that the existence of prior DUI convictions is an essential element of felony DUI, it necessarily follows that the requisite notice of prior DUI convictions must be given in the charging document.

Published on: December 9, 2012

Defendant Claims Right to Speedy Trial Violated

by Stephen Bilkis

The People of the State of New York are the plaintiff’s in this matter against the defendants D.W., who is also known as A.J., W.N. who is also known as W., and C.P., who is also known as A.. This case is being heard in the Westchester County Court. The defendant, D.W. has moved for an order to dismiss the instant indictment against him claiming that his rights to a speedy trial have been violated.

Case Background

The defendants have been charged in an indictment for a number of different crimes including forcible rape and forcible sodomy of a woman over a period of time from the 25th through the 26th of November, 1992. Defendant Williams is charged with 10 separate counts of rape in the first degree and 9 separate counts of sodomy in the first degree. All three of the defendants have been charged with an additional count of unlawful imprisonment in the second degree.

Published on: December 8, 2012

Court Hears Institutional Reform Case

by Stephen Bilkis

This is the latest appeal growing out of the nearly two-decade old, racial discrimination in employment lawsuit involving the Alabama Department of Transportation (ALDOT) and the State Personnel Department (SPD). Those two state agencies were sued in 1985 by what became two plaintiff classes of black employees and prospective employees. A partial settlement was reached and a consent decree was entered in 1994, but instead of ending the case the decree became a platform for additional litigation.

A New York Criminal Lawyer said the consent decree, aimed at ending racial discrimination in ALDOT’s employment practices, has twenty-one articles. This appeal is about Article Two, which governs the development and use of “minimum qualifications” (MQs), which are part of the selection procedure for hiring and promoting employees in ALDOT jobs. A job seeker wanting to sit for an employment examination must meet the MQs first. MQs are designed to screen for skills needed at entry into a new position, and can screen for, among other things, “knowledge, skills and abilities” (KSAs) relevant to a position. The job examinations themselves measure KSAs.

The provision of Article Two that was modified by the district court is ¶ 1, which is called “the no-overlap provision.” This is what the paragraph says:

Published on: December 7, 2012

Court Discusses Sex Offender Management and Treatment Act

by Stephen Bilkis

This case is being heard in the Supreme Court of the state of New York in New York County. The People of the State of New York are the petitioners in this matter and the respondent is J.S..

Case Facts

A New York Criminal Lawyer said J.S., the respondent in this case, pled guilty in 1968 to Rape and Robbery in the first degree. This plea satisfied numerous charges of rape, sodomy, robbery, assault, and other charges that arose from several attacks on women that he had allegedly committed around the City College campus in Manhattan. He was sentenced to five to fifteen years for this guilty plea. However, after several appeals his plea of guilty was invalidated by a grant from the Supreme Court of a petition for a writ of habeas corpus. It was found by the court that the Suggs was not mentally competent at the time of the plea that had led to his conviction a decade earlier. This decision was affirmed and Suggs was released from prison in 1978.

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: December 5, 2012

Court Looks at Intent to Commit Petit Larceny

by Stephen Bilkis

A man went to a house in a residential neighborhood. It was eleven thirty in the evening and all the three residents of the house were fast asleep. The man went up the roof and was preparing to enter the house through a bedroom with an open screened window.

A New York Criminal Lawyer said tne resident of the house was fast asleep in the bedroom as the man was trying to enter through the screen window. The noise made by the man outside the window woke the resident of the house. He had a .25 caliber hand gun in a drawer in his bedside table. He cried aloud and said “Who’s there?” When the man crouched down in an attempt to hide, the occupant fired a warning shot.

Another occupant called an emergency hotline and the man was unable to get down from the roof until the police got there. The man was charged with attempted breaking entering with intent to commit grand larceny. It was alleged that the three occupants in the house had cell phones, laptop computers and other valuables inside the house which could have been what the prowler intended to take.

Published on: December 4, 2012

Defendant Contests Risk Assessment Designation

by Stephen Bilkis

Defendant W. was arrested for acting in concert with J.S. in allegedly committing the crimes of Kidnapping in the First Degree (Penal Law § 135.25 [1]), Rape in the First Degree (Penal Law § 130.35 [1]), Sodomy in the First Degree (Penal Law § 130.50 [1]), and Unlawful Imprisonment in the First Degree (Penal Law § 135.10), against one Sabrina on May 3, 2000, in the vicinity of East 233rd Street and White Plains Road in Bronx County. Defendant and co-defendant J.S. were subsequently indicted for all of the above charges. In the felony complaint, it was alleged that Defendant and J.S. detained S. in a car and refused to let her leave when she requested to do so. Further, when she attempted to get out, she was pulled back inside and her mouth covered when she tried to scream for help. Defendant and J.S. then held S. down while Defendant inserted his penis into her vagina and J.S. inserted his penis into her mouth, both without her consent. At the time of his arrest, when told that he was being charged with rape, Defendant responded, “I kind of had that feeling.” He was subsequently identified by both Sabrina and an eyewitness in separate corporeal lineups.

A New York Criminal Lawyer said that, in the course of the Grand Jury presentation, it was established that S. was with her friend R. R. knew Defendant and talked to him while S. was standing close by. S. and R. got into the back seat of the vehicle. When R. got out purchasing some cigarettes or marijuana, Defendant drove off with S. S. called to R. for help. However, S. pulled her back into the car. Defendant proceeded to drive to a parking lot. He then got into the back seat, grabbed S’s thigh and demanded that she place his penis into her mouth. Thereafter, Defendant removed S’s pants, held her hands down, and engaged in sexual intercourse with her against her will. L.S. then inserted his penis into S’s mouth and masturbated into her mouth while Defendant held her hands down as she was repeatedly shouting, “No.” L.S. then struck S. in the mouth. Afterwards, Sabrina was driven to within one block of her home and forcibly thrown out of the car.

A Brooklyn Criminal Lawyer said DNA tests performed on the victim and Defendant revealed that his semen and that of another male were found on a vaginal swab of the victim as well as on her panties.