Criminal Procedure

Published on: October 2, 2012

Court Discusses Crime of Possession of a Controlled Substance

by Stephen Bilkis

On this proceeding, the state presented evidence about a pharmacologist who was a member of a conspiracy to procure heroin. The pharmacologist and his accomplices were guilty of attempted criminal possession of a controlled substance based on a series of events that commenced in the state. Even if the jury found him guilty of both the crime, on appeal, he challenges the state’s exercise of territorial jurisdiction over the second offense only.

A New York Criminal Lawyer said the evidence revealed that the leader of the conspiracy was a man. Through a wiretap surveillance of the telephone line to the leader’s residence, the law enforcement authorities discovered that the leader was raising $120,000 to pay a courier fee to obtain a large quantity of heroin to the state. The intercepted conversations cryptically identified the various players in the proposed drug exchange. The state theorized that the pharmacologist’s role in the project was to test the purity of the heroin.

The leader and another individual discussed the pharmacologist’s availability for the project. Upon receiving a telephone call advising that the pharmacologist had been located. Thereafter, a woman used the leader’s telephone to make airline reservations for three men to fly at 8:00 p.m. that evening and all of them were under the same surnames. A New York Criminal Lawyer said the law enforcement authorities observed the pharmacologist together with two other men aboard the flight. At the request of an investigator, a state’s troop followed the activities of the three men. After registering at the airport’s hotel under aliases, they were seen entering and leaving each other’s rooms during the next 24 hours.

Published on: October 2, 2012

Court Decides Heroin Possession Case

by Stephen Bilkis

In this drug offense case, defendant was found in his apartment with 6¼ grams of heroin about twenty to thirty minutes after a package containing 13 grams of heroin was delivered by mail to his apartment. Customs and postal inspectors had discovered the heroin in the package when it had arrived in the country at San Francisco. A New York Drug Crime Lawyer said the package was mailed from Thailand and addressed to defendant’s residence in Daytona Beach, Florida. The postal authorities arranged a controlled delivery of the package to defendant’s residence.

A Jacksonville Heroin Possession Lawyer said that, about twenty to thirty minutes after this controlled delivery had taken place, four officials, one a postal inspector, and another a customs agent, and the other two, Daytona Beach police detectives, entered defendant’s apartment under a valid search warrant. They found defendant in a bedroom with 6¼ grams of heroin on a coffee table in front of him. They conducted a search to find the remaining heroin. During this search, they found thirty packets of heroin, each wrapped in aluminum foil and containing a mixture which included approximately one milligram of heroin, in a drawer of a dresser in a bedroom across the hall from the room where defendant had been found. It was established at trial that these “dime bags” small packets wrapped in aluminum foil containing about one milligram of heroin are commonly used in passing heroin on the streets. The authorities also found some butts of marijuana cigarettes in the same bedroom drawer. While the authorities were searching the apartment, defendant remarked to them, referring to the thirty “dime bags”, “I bet you didn’t think I could package it up that quick”.

A Jacksonville Intent to Distribute Lawyer said that, the indictment charged possession with intent to distribute only the 6¼ grams found on the coffee table. The Government relied upon the 30 “dime bags” to prove that defendant had the requisite intent to distribute. A New York Criminal Lawyer said its theory was that the heroin found in packages suitable for street distribution indicated that defendant was a dealer in heroin; that he had received the 13-gram package delivered in the mail for the purpose of selling or distributing most or all of the 13-gram quantity; and that he therefore intended to distribute the 6¼ gram quantity found on the coffee table.

Published on: October 1, 2012

Defendant Claims Insufficiency of Evidence

by Stephen Bilkis

In this case, the appellant was tried before the court without a jury and found guilty of the crime of breaking and entering a dwelling with intent to commit a felony, to-wit, grand larceny, and of the crime of grand larceny. A New York Criminal Lawyer said that separate sentences were imposed thereon for imprisonment for a period of three years, with provision for the sentences to be served concurrently.

On appeal therefrom, it was contended that the court erred in denying appellant’s motion for acquittal on the ground of insufficiency of the evidence, and further that it was error to impose more than one sentence.

Upon review of the case, the court found no reversible error therein.

Published on: October 1, 2012

Court Discusses the Blockburger Test

by Stephen Bilkis

In this case, the appellant appealed his convictions and sentences for fraudulent sale of a counterfeit controlled substance, and felony petit theft. He argued that both charges arose out of the same acts, and that this double conviction should be barred by section 775.021(4)(a) and (b), Fla.Stat.

A New York Criminal Lawyer said the record of this case established that Appellant told an undercover officer that he had rock cocaine for sale. He sold the officer a substance which proved not to be cocaine. For the fraudulent sale, he was sentenced as a habitual offender to ten years in prison. For the felony petit larceny, he received a consecutive two-year term on community control followed by three years on probation.

The Florida Legislature has announced its intent that there should be separate and multiple convictions for each statutory offense that is committed during the course of a criminal transaction or episode. In section 775.021(4)(b) the Legislature set out basically only two exceptions to this policy. Subsections 1 and 3 are encompassed by the Blockburger test: statutory offenses which require proof of all of the same elements of proof; and those that require fewer, but identical elements of proof, which are necessarily included in the elements of the greater offense. Subsection 2 excepts “degree” crimes, such as the various forms of homicide.

Published on: September 30, 2012

Appellant Contends Summary Judgment was in Error

by Stephen Bilkis

In her complaint the appellant averred that she was maliciously prosecuted when the appellees, acting in concert, caused her arrest and induced the County Solicitor of Dade County to file information in which she was charged with grand larceny, a charge the appellees knew was false. The pleader detailed the procedure following the filing of the information, related the embarrassment she endured and the damage she suffered, and she repeated the charge that the prosecution was instigated through malice without probable cause. A Dade Grand Larceny Lawyer said that, it was stated in the complaint that appellant pleaded not guilty upon arraignment, waived a jury and was found not guilty by the Judge of the Criminal Court of Record.

A New York Criminal Lawyer said that, summary judgment in favor of the appellees, who were defendants in the circuit court, was entered by the judge when he concluded that no genuine issue of fact was presented and that the movants should prevail as a matter of law.

The issue in this case is whether the Circuit Court Judge erred in granting summary judgment in favor of the appellees.

Published on: September 29, 2012

Appellant Argues Sentencing Guidelines were Inaccurate

by Stephen Bilkis

In this case, a New York Criminal Lawyer said the Appellant sought review of the sentences imposed based upon inaccurate sentencing guidelines scoresheet, and a written probation order that included a condition which was not pronounced orally at the sentencing hearing.

The court reversed the sentence imposed and remanded the case for resentencing.

The predicate offenses, kidnapping and armed robbery with a weapon, were committed June 8, 1990. The guidelines scoresheet used at sentencing shows a total of 316 points, for a recommended sentencing range of twelve to seventeen years, and a permitted sentencing range of nine to twenty-two years. The trial court imposed a sentence of twenty years on the kidnapping conviction, and a probationary term of twenty years on the armed robbery with a weapon conviction. The probation was to be served consecutively to the kidnapping sentence.

Published on: September 28, 2012

Court Hears Juvenile Robber Case

by Stephen Bilkis

This case is about an appeal filed by a juvenile from an adjudication of delinquency for robbery and a subsequent commitment to the Florida Department of Health and Rehabilitative Services.

The central question presented for review is whether the state established a prima facie case that the respondent juvenile employed force, violence, assault or putting in fear–an essential element of robbery–in effecting a theft of jewelry from a three-year-old child.

The respondent was charged in a petition for delinquency before the Circuit Court for the Eleventh Judicial Circuit with the offense of robbery.

Published on: September 27, 2012

Court Decides if Prior Convictions Can Be Used to Impeach Defendant

by Stephen Bilkis

This case is about an appellant who was adjudicated guilty, after a jury trial, for inciting a riot under Section 870.01(2), Florida Statutes (1981). A New York Criminal Lawyer said the appellant argued that the evidence presented by the prosecution was insufficient to support his conviction. Although the sufficiency of the proof presented a close question, after thorough review, the court held that the State did present a prima facie case and that a judgment of acquittal was not required.

The case however was reversed on the ground of evidentiary rulings as to prior convictions. The question concerns the impeachment of appellant under Section 90.610, Florida Statutes (1981), on the basis of two prior petit larceny convictions. The trial court ruled that these prior petit larceny convictions could be used for impeachment purposes and threatened to hold appellant in contempt if he took the stand and testified that he had not been convicted of a crime. Appellant did testify and on direct examination stated he had been convicted of a crime twice.

The old rules on Evidence provide that a witness was subject to being impeached with evidence of a prior conviction of any crime, excluding violations of a municipal ordinance. Jurisprudence prior to the amendment of the rules established that “a crime is a crime”. A New York Criminal Lawyer said the argument that discrediting crimes must involve moral turpitude was expressly rejected.

Published on: September 27, 2012

Court Hears Heroin Possession Case

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 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 New York Criminal 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 possession went on simultaneously. 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: September 26, 2012

Court Hears Cocaine Possession Case

by Stephen Bilkis

In this criminal case, the defendant was arrested by a Police Officer at 144th Street in Manhattan and charged with possession of a 9mm firearm. A New York Criminal Lawyer said that while en route to the 32nd Precinct, he initiated a conversation with the Police Officer in which he asked him to let him go and stated that he would help him by bringing in additional guns. They arrived at the precinct at approximately 7:50 p.m. and while the Police Officer elicited pedigree information, the defendant continued to talk about bringing in additional guns. The defendant, who was “kind of fidgety”, talked continuously and was “over-excited”, told the Police officer that he “used” heroin. At 9:05 p.m. A detective read Miranda warnings to the defendant.

The defendant indicated that he understood his rights and wished to answer questions. Thereafter, the Police Officer and the Detective spoke with the defendant intermittently. During this period the defendant also was questioned by homicide detectives from the 32nd Precinct. Thereafter, the defendant gave a detailed oral statement to the detective in whom he explained where and from whom he had purchased the 9mm weapon and said that he had purchased cocaine (cocaine possession) from the same location. At approximately midnight, the defendant made two telephone calls: one to his wife and the other to an unidentified male. He told the man that he had been arrested, that he was “working with some good police officers” and that the man should gather the guns and gave them to the defendant’s wife. The Police Officer told the defendant that he would tell the District Attorney’s Office that the defendant was cooperating. At approximately 2:00 a.m. the defendant’s wife arrived at the precinct and the defendant, in the Police Officer’s presence, instructed her to get the guns. At about 4:00 a.m. she returned to the precinct with a Cobray Mac 11 gun, a .380 caliber pistol and matching ammunition.

The defendant was then transported from the 32nd Precinct to Manhattan Central Booking for arraignment. He complained of being ill and asked to see a doctor. Central Booking, therefore, would not accept him and he was returned to the 32nd Precinct. A Nassau County Criminal Lawyer said the Police Officer filed a felony complaint on the arrest with the Manhattan District Attorney’s Office. The Warrant Officer again transported the defendant to Manhattan Central Booking. At 10:15 a.m. the Warrant Officer received a call from the Police Officer asking that he return the defendant to the 32nd Precinct and the former did so.