Criminal Procedure

Published on: November 22, 2012

Court Discusses Risk Assessment Factors

by Stephen Bilkis

The People of the State of New York are the plaintiffs in this case. The defendant of the case is W.F.. The County Court of the City of New York in Madison County is the location where this case is being heard.

The defendant was convicted based on a guilty plea, to rape in the second degree, which is a class D felony. He was sentenced on the 5th of September, 2002 to an indeterminate period of 1 to 3 years. He is scheduled to be released to parole on the 25th of April, 2004. The court is being called upon to assess the risk of the defendant.

Defendant’s History

Published on: November 21, 2012

Court Decides Narcotics Sales Case

by Stephen Bilkis

A New York Criminal Lawyer said that in May 1990, members of the narcotics teams arrested three men for street narcotics sales to undercover police officers. In each case, both the arrest and the evident conduct constituting the crimes was charged occurred entirely within the county and pursuant to an agreement between the district attorney and the special narcotics prosecutor, the criminal actions were commenced by the filing of felony complaints in court.

A New York Criminal Lawyer said that all the three men were arraigned and their cases adjourned for action by the special narcotics grand jury and/or possible disposition by way of waiver of indictment and the filing of superior court’s information. The counsel orally moved for dismissal of the felony complaints on the ground that the court had lacked of geographical authority as defined in law. With the concurrence of all the parties, the court reserved decision and set a schedule for the filing of written motions and memoranda of law.

While the court was waiting from the city of New York’s response, the prosecutor presented the two men’s matters to a special narcotics grand jury. A true bill was voted with respect to each and the charges were filed. A New York Drug Possession Lawyer said the indictments are currently pending in other special narcotics Supreme Court parts. One of the men has actually entered a guilty plea to a lesser included offense. Consequently, the city of New York moved to dismiss the charges against the other men because the laboratory report showed that the items sold contained no controlled substance. Apparently, the motion was granted by the court.

Published on: November 21, 2012

Court Decides if Military Tribunal is Considered a Court of Jurisdiction

by Stephen Bilkis

This matter involves H.B. and L.C as the Judge of the Jefferson County Court as the respondents. The appellant in the case is J.K. as the Jefferson County District Attorney. The other case involves the respondents L.B. and L.C. as the Judge of the Jefferson County Court and J.K. as the Jefferson County District Attorney as the appellant.

The District Attorney of Jefferson County is appealing two cases. He is seeking to overturn the grant of writs of prohibition that prevent his office from prosecuting serious crimes that were committed by two solders on military property. The soldiers were off duty at the time.

The petitioner soldiers were tried and convicted by a general court martial for identical conduct that they were indicted for in Jefferson County. The issue in each of the cases is whether a military tribunal is considered a court with any jurisdiction in the United States. If a military tribunal is considered a court with jurisdiction than the double jeopardy protection laws of the state of New York would bar the successive prosecution of the issues in these cases.

Published on: November 20, 2012

Key Witness Recants Testimony

by Stephen Bilkis

Defendant is currently serving a prison term of twenty-five years to life, having been convicted of Murder in the Second Degree for shooting and killing Cesar Vasquez on the evening of July 16, 1991. Defendant and his co-defendant were convicted after a jury trial based on identifications made by a single eye witness, P.D. D., a woman with a lengthy psychiatric history, the details of which were largely unknown to defendant at the time of trial, testified that she looked out her fourth floor window at midnight and saw defendant and two other men with guns approach her building. As she ran downstairs she heard five gunshots and saw the back of the men as they left the scene. Although her fourteen year old son, G, was out on the street and witnessed the shooting, he was never called as a witness at trial.A New York Drug Crime Lawyer said the People did not present any physical evidence, motive evidence or any other evidence to corroborate Denor’s identification of defendant as one of the shooters.

D, a complete stranger to both defendants, has now recanted her trial testimony, claiming that she lied when she testified that she saw the faces of the shooters and identified them. A Nassau Criminal Lawyer said that, she now claims that she did not actually see and could not have seen the faces of the shooters and that she identified defendant based only on her observation of a photograph of him that she saw in the investigating detective’s car. Denor states that she falsely identified defendant out of a strong desire to protect her son, whom she believed was being threatened by detective Pezullo and whom she did not want to testify.

A Queens Criminal Lawyer said that, defendant moves to vacate his conviction pursuant to CPL §440.10 based primarily on Denor’s recantation. He argues that her recantation is newly discovered evidence that is credible and reliable and that if known at trial would have created the probability of a more favorable verdict to defendant.

Published on: November 20, 2012

Court Discusses 5th Amendment Double Jeopardy Issue

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. A New York Criminal Lawyer said 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 (drug 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, 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. A Brooklyn Criminal Lawyer said 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: November 20, 2012

Court Discusses Whether Constitution Rights of Inmates has been 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: November 19, 2012

Defendant Contests Immigration Issues in Relation to Sex Crimes

by Stephen Bilkis

The case involves the People of the State of New York against the defendant Floyd F. The Criminal Court of the City of New York in Kings County is hearing this case. A New York Criminal Lawyer said the defendant has motioned to have his plea of guilty to sexual abuse in the third degree vacated. The plea was taken on the 10th of November, 1994 and he was convicted for the crime (sex crimes) on the 12th of January, 1995.

Defendant’s Argument

The defendant is requesting that the judgment against him be vacated based upon ineffective counsel and because the plea was entered without him fully understanding what it met. The defendant argues that when he entered the plea of guilty he was not informed by his attorney of the potential immigration consequences. He states that if he had known about these consequences he would have chosen to not enter the plea and would have gone to trial instead.

Published on: November 17, 2012

Court Discusses Search Warrant

by Stephen Bilkis

This case is about the validity of a search warrant which authorized a search of the premises where defendant resided, and also of another residential unit distantly located. A New York Criminal Lawyer said whether the warrant itself is sufficient; and whether by collateral estoppel the infirmity of the warrant may be argued or applied to the other residence; has to be determined by the Court.

On September 10, 1985, a New York City Police officer applied by telephone to a Queens County Criminal Court Judge for a search warrant for two premises in Queens: 155-47 116th Avenue; and the second floor of a two family dwelling at 116-66 231st Street. The application was based on the information provided to the Police Officer by an unregistered and unidentified informant, who had provided information in the past. According to the informant, there were two black males who had been abducted, beaten and were near death from a ruined drug crime transaction (drug possession) at the 116th Avenue location. The informant also said to the Police Officer that he had just left the location twenty minutes earlier and that he had been in the company of three of the suspects who were going to the 231st Street location, at about 8:00 P.M., in order to cut and distribute drugs.

The judge authorized a “no-knock” search of both premises and authorized the arrest of all persons found therein, as well as the seizure of any contraband found. The search of the 116th Avenue location resulted in the arrest of seven people and the recovery of misdemeanor quantities of narcotics and several rifles. The search of the 231st Street location, which is defendant’s home, resulted in the arrest of defendant and five others, and the recovery of substantial amount of narcotics, handguns, cash, and drug paraphernalia.

Published on: November 16, 2012

Court Discusses Elements of a Criminal Conspiracy

by Stephen Bilkis

The two accused men, charged with the crimes of Criminal Sale of a Dangerous Drug and Conspiracy (drug possession), 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,a Nassau County Criminal Lawyer said 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 and Conspiracy.

Published on: November 15, 2012

Court Decides if Powell was Unlawfully Excluded from Seating in Congress

by Stephen Bilkis

During the 89th Congress, a Special Subcommittee on Contracts of the Committee on House Administration conducted an investigation into the expenditures of the Committee on Education and Labor, of which petitioner Adam Clayton Powell, Jr., was chairman. A New York Crirminal Lawyer said the Special Subcommittee issued a report concluding that Powell and certain staff employees had deceived the House authorities as to travel expenses. The report also indicated there was strong evidence that certain illegal salary payments had been made to Powell’s wife at his direction. No formal action or criminal charges was taken during the 89th Congress. However, prior to the organization of the 90th Congress, the Democratic members-elect met in caucus and voted to remove Powell as chairman of the Committee on Education and Labor.

When the 90th Congress met to organize in January 1967, Powell was asked to step aside while the oath was administered to the other members-elect. Following the administration of the oath to the remaining members, the House discussed the procedure to be followed in determining whether Powell was eligible to take his seat. A Brooklyn Criminal Lawyer said after some debate, by a vote of 363 to 65 the House adopted House Resolution No. 1, which provided that the Speaker appoint a Select Committee to determine Powell’s eligibility. Although the resolution prohibited Powell from taking his seat until the House acted on the Select Committee’s report, it did provide that he should receive all the pay and allowances due a member during the period.

The Select Committee, composed of nine lawyer-members, issued an invitation to Powell to testify before the Committee. The invitation letter stated that the scope of the testimony and investigation would include Powell’s qualifications as to age, citizenship, and residency; his involvement in a civil suit, and matters of alleged official misconduct.