Criminal Procedure

Published on: November 7, 2012

Court Finds No Probable Cause for Search

by Stephen Bilkis

On January 20, 1984, two police officers were on patrol in a marked police car, when they observed a white, 2-door Pontiac stopped or standing adjacent to a fire hydrant, at the intersection in the Bronx. The police officer who had been operating the patrol car stopped and requested the woman to move the auto from the hydrant, whereupon she stated that she did not have a license and that it was not her car. The officer maneuvered the patrol car so that its headlights faced the front of the Pontiac and both officers exited their vehicle carrying flashlights, with the patrol car driver proceeding to the passenger side and his fellow officer to the driver’s door.

A New York Criminal Lawyer said one of the officers asked the woman to produce her operator’s license, registration and insurance certificate. She responded that she did not have a license but the registration was produced from the glove compartment, although the record does not reflect whether it was retrieved by the car owner or by the woman. In any event, after the woman was unable to state the name of the owner in response to the officer’s inquiry, the police officer, who was shining a flashlight into the car, noticed a closed, brown paper bag, resting against the seat, between the car owner and the woman. He inquired as to the contents of the bag, whereupon the woman picked up the bag, handed it out the window and stated that it’s only boxes of envelopes. According to the police officer, she became confused at that point, and didn’t understand him. She complied with the command and handed the bag out the window. The other officer, who was positioned on the sidewalk behind the passenger door, only heard highlights of what had transpired between his fellow officer and the woman.

The officer took the bag and placed it on the roof of the car. He then shook it and heard a metallic sound. Contrary to the fact-finding analysis, the police officer did not testify that he believed the bag to contain a hidden weapon or an object heavy enough to be a weapon. Without any further inquiry, he opened the bag to examine the contents and discovered two tan stationery-type boxes. When he opened the first, he found hundreds of glassine envelopes and yelled to his fellow officer to watch out because he got something. Although the officer did not examine the contents, he saw that it contained what appeared to be glassine envelopes and believed that they had powder in them. Actually, the envelopes had no powder and were empty.

Published on: November 6, 2012

Court Discusses Antiterrorism Act of 1996

by Stephen Bilkis

This case involves two federal prescriptions: the one-year limitation period imposed on federal habeas corpus petitioners by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. § 2244(d)(1); and the rule that pleading amendments relate back to the filing date of the original pleading when both the original plea and the amendment arise out of the same “conduct, transaction, or occurrence.

A New York Criminal Lawyer said the respondent was convicted of murder and robbery in California state court and sentenced to life imprisonment. His current application for federal habeas relief centers on two alleged trial-court errors, both involving the admission of out-of-court statements during the prosecutor’s case in chief but otherwise unrelated. Respondent had made inculpatory statements during pretrial police interrogation. He alleged that those statements were coerced, and that their admission violated his Fifth Amendment privilege against self-incrimination. He also alleged that the admission of a videotape recording of testimony of a prosecution witness violated the Sixth Amendment’s Confrontation Clause.

Respondent’s conviction was affirmed on appeal and became final on August 12, 1997. Under the one-year limitation period imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. § 2244(d)(1), he had until August 12, 1998, to file a habeas petition in federal court. On May 8, 1998, in a timely filed habeas petition, respondent asserted his Confrontation Clause challenge to admission of the videotaped prosecution witness testimony, but did not then challenge the admission of his own pretrial statements. On January 28, 1999, over five months after the August 12, 1998 expiration of AEDPA’s time limit and eight months after the court appointed counsel to represent him, respondent filed an amended petition asserting a Fifth Amendment objection to admission of his pretrial statements. In response to the State’s argument that the Fifth Amendment claim was time barred, respondent asserted the rule that pleading amendments relate back to the filing date of the original pleading when both the original plea and the amendment arise out of the same “conduct, transaction, or occurrence set forth . . . in the original pleading,” Fed. Rule Civ. Proc. 15(c)(2). Because his Fifth Amendment and Confrontation Clause claims challenged the constitutionality of the same criminal conviction, respondent urged, both claims arose out of the same “conduct, transaction, or occurrence.”

Published on: November 6, 2012

Court Discusses Crime of Barbituate Possession

by Stephen Bilkis

At about 6:30 p.m., a 15 year old boy violated the criminal law. The boy was in unlawful barbiturates possession (Drug Possession) that can only be obtained by a doctor’s prescription. The boy, prior to his arrest, has been observed by the witness being approached by another youth who placed a dollar bill upon a mail box and in return received something from the boy. The object is being taken from the boy’s right pants pocket where the two bottles of barbiturates was found.

There was only one witness who testified at the fact finding trial. The police officer testified that at that day from a distance of about 30 feet, he observed the boy approach a youth at a mail box on a public street in daylight, take a bill of currency placed on top of the mail box, pass an unseen object in his closed hand to the youth and then he followed the boy as he shuffled unsteadily, evidently intoxicated by alcohol or a drug, for about two blocks until he turned through the doorway of a grocery store. A New York Criminal Lawyer said the police officer thereupon spoke to the boy in the store. He observed that the shuffling boy appeared to be dazed or drugged, with half-closed eyes. The police officers ask the boy to identify himself and requested to be search. The boy cooperated without objection. Upon tapping his clothes in the well-known manner, the police officer noticed hard objects in the boy’s pocket. He then asked the boy to empty his pockets. Still cooperating without objection, the boy produced two unlabeled brown bottles containing dozens of pills and nine one dollar bills. The boy confessed on the spot, as the police officer testified, that the many white pills were barbiturates and he had sold the pills. He stated that he could not remember or did not know the name of the man from whom he had obtained the pills, a strange man in a park. Quite importantly, the boy further admitted that he had been himself taking those pills for about one and one-half months and his obvious doped condition was the result of it. The pills were now in evidence.

The court was tempted to defer the proceeding, after which no chemical analysis was yet available for the purpose of obtaining the analysis from the police department laboratory. In addition, a New York Criminal Lawyer said because of the failure to analyze the pills received in evidence as found in the possession of the boy, there are lengthy observations and findings which the court required to make. The opinion of the court may shed on the juvenile drug crime problem and simplify the evidence and procedures in similar cases.

Published on: November 5, 2012

Court Finds Evidence Submitted in Error

by Stephen Bilkis

This case is taking place in the Appellate Division of the Supreme Court of New York, Second Department. The appellant in the matter is the People of the State of New York. The respondent in the case is F.W. The defendant is appealing a judgment made by the County Court of Suffolk County that convicted him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled sentence in the third degree.

A New York Criminal Lawyer said the issue being argued on appeal is whether admission of evidence that the defendant, who was on trial for a single sale of cocaine, sold drugs to the same buyer on more than one occasion was an error in the case that requires a new trial in the matter.

Case Background

Published on: November 4, 2012

Defendant Ordered to Attend Alcohol and Drug Treatment Program

by Stephen Bilkis

This proceeding is taking place in the Supreme Court of the State of New York in St. Lawrence County. The case deals for a judgment that is pursuant to Article 78 of CPLR that was originated by a petition made by T.J. and verified on the 13th of November, 2007. The petitioner is an inmate at the Ogdensburg Correctional Facility and is seeking an order from this court to direct that he be credited with approximately 270 days of jail time that he allegedly spent in the Suffolk County and or Willard Drug Treatment Campus against his sentence of three years that was imposed by the Supreme Court of Suffolk County. Additionally, a New York Criminal Lawyer said the petitioner seeks for this court directing his immediate enrollment in the DOCS Comprehensive Alcohol and Substance Abuse Treatment program.

Case Background

On the third of July, 2003, the petitioner was sentenced in the Suffolk County Court as a second felony offender. His sentence was imprisonment of three to six years and was for a conviction of attempted criminal sale of a controlled substance in the third degree (drug possession). DOCS received the petitioner in their custody on the 14th of July, 2003. He was entitled to 67 days of jail time credit at the time. On the 29th of January the petitioner was released into parole supervision after completing the DOCS shock incarceration program.

Published on: November 3, 2012

Appellant Claims Due Process Right Violated

by Stephen Bilkis

The defendant in this case, R.C., is appealing a judgment made by the Supreme Court of Suffolk County. The judgment convicted the appellant of criminal sale of a controlled substance in the third degree. A New York Criminal Lawyer said the appeal brings up issues of denial of the defendant’s omnibus motion that was to dismiss the indictment and to suppress identification testimony. This case is being heard in the Supreme Court, Appellate Division, Second Department.

Case Background

In June of 1984, in response to numerous complaints made by residents in the Wyandanch, Long Island, area that the community was becoming an open drug market, an undercover operation was conducted by the Suffolk County Police.

Published on: November 3, 2012

Defendant Claims he was Subjected to Custodial Interrogation

by Stephen Bilkis

The respondent of this case is the People of the State of New York. The appellant in the case is M.T. This case is being heard in the Supreme Court of the State of New York, Appellate Division, Second Department. M.T. is appealing a decision that denied his motion to vacate two judgments from the same court that convicted him of murder in the second degree.

Case Facts

On the 7th of September, 1988, S.T. and A.T. were attacked fatally (murder) in their home located in Belle Terre, New York. When the police arrived at the scene of the crime, the defendant, who is the son of the victims and was 17 years old at the time, repeatedly told the police that his father’s business partner, J.S. committed the murders.

Published on: November 2, 2012

Defendant Claims Court Erred in Not Allowing Key Testimony

by Stephen Bilkis

The People of the State of New York are the respondents and Zachary R. Gibian is the appellant in this case being held in the Supreme Court of the State of New York, Appellate Division, Second Judicial Department. The defendant is appealing a judgment made by the Supreme Court of Suffolk County that was issued on the 17th of January, 2007 and convicted him of murder in the second degree.

Defendant’s Argument

A New York Criminal Lawyer said the defendant identifies three grounds for this appeal to reverse his conviction. The first is for the preclusion on the grounds of hearsay of the statements that were made by the defendant’s mother. The second is juror misconduct during deliberations. The third is the summary curtailment of the closing statement made by the defense counsel.

Published on: November 1, 2012

Plaintiffs Sue Author for Publishing Defamatory Matter

by Stephen Bilkis

This case involves the respondent D.R. and the appellants. The case is being heard in the Court of Appeals of New York. The action is for defamation as the plaintiff is a Justice of the Supreme Court in the Second Judicial District. He alleges that he was libeled in the book “Cruel and Unusual Justice” that was authored by the defendants. The defendants motioned for summary judgment in the case after extensive pretrial discovery. The motion was denied by Special Term. The Appellate Division affirmed this decision in a closely divided court. The defendants were granted leave to appeal to our court on a certified question.

Court Discussion

A New York Criminal Lawyer said the question before the court is whether the plaintiff has established the existence of material facts that are sufficient to create a triable issue for his libel cause of action.

Published on: October 31, 2012

Defendant Claims Grounds for Indictment are Insufficient

by Stephen Bilkis

This is a case being heard in the Suffolk County Court. The case involves the People of the State of New York against the defendant K.M. The defendant has been accused of acting in concert with another in commission of the crimes of criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the first degree. K.M.has moved for the charges against him to be dismissed on the account that the indictment is defective and that it was not found on legally sufficient evidence.

Defendant’s Argument

A New York Criminal Lawyer said the defendant argues that the indictment is deficient as it fails to conform to CPL section 200.30, subdivision 7. This section requires that a plain and concise factual statement of each count must be made. It further states that the defendant must be clearly apprised as to the matter of the accusation that is made against him.