Criminal Procedure

Published on: September 25, 2012

Court Hears Bank Fraud Case

by Stephen Bilkis

The savings bank filed a motion for summary judgment in its action against the mortgage corporation and the guarantors for breaches of loan agreement and guaranty agreement, respectively, by the latter and for their charges against another defendant for the commission of bank fraud.

The plaintiff entered into a contract of loan at New Jersey with the mortgage banker wherein the savings bank extended a line of credit to the defendant for the purpose of closing the latter’s existing mortgage loans. In connection with the loan agreement, the officers, who are the owners of the mortgage corporation, executed individual guaranty contract which established their solidary liability of the mortgage banker’s obligation upon its failure to settle the obligations on time. Another guaranty was executed by the owner’s wife in relation with the loan agreement.

The stipulations of the loan agreement pertain to the grant of mortgage loans of the defendants’ borrowers where the line of credit shall be used to finance the mortgage contracts. Upon settlement of the mortgage loans by the borrowers, the proceeds of the loan would then be remitted to the savings bank and mortgage notes would be used as security in favor of the savings bank as part of their agreement. A Long Island Criminal Lawyer said much mortgages would then be sold to potential investors and the plaintiff, as bailee, shall give the investors the mortgage notes where they shall pay the purchase price directly to the savings bank’s mortgage warehouse lenders who in turn would give the proceeds back to the savings bank as payment to the advances made by the defendants in their line of credit with the plaintiff. The defendants were responsible to the keeping of all the records pertaining to the loan agreement.

Published on: September 24, 2012

Court Hears Motion for Summary Judgment Case

by Stephen Bilkis

A motion was filed by the defendant for summary judgment of the case in its favor. The plaintiff is a Swiss bank that filed a case against the New York Company who committed bank fraud, particularly, fabricated and sold the promissory notes of the bank amounting to $5 million. The Swiss bank further alleged that the notes sold by the company defendant was part of a global fraud scheme to raise funds in favor of an Italian food conglomerate as payments of loan by the former to the latter.

The bank fraud was conducted through issuance of the notes by one of the company’s subsidiary in Uruguay, which was then sold to a defendant’s affiliate where the Swiss bank purchased the promissory note. A New York Criminal Lawyer said the note is with attachments of a guarantee of payment executed by the subsidiary company and a side letter from the affiliated company. The letter contained a certification that the proceeds of the notes will be used to finance the expansion of the Italian food conglomerate and for the upgrade of its industrial plants at various South American countries.

However, during the time of the purchase of the notes, the food conglomerate financial conditions were worsening and the governments of Brazil and Italy conducted criminal investigations of the Italian food conglomerate financial structure due to the financial distress status of the company and such became a public knowledge. The notes purchased by the plaintiff matured in 2004 but have not been repaid. One of the issued notes was then sold to the bank’s affiliate. The Swiss bank also filed a claim on the notes in the bankruptcy proceedings commenced by Italy against the Italian food conglomerate.

Published on: September 23, 2012

Court Decides Conspiracy Charges

by Stephen Bilkis

In this criminal case, a shoplifter had been apprehended and brought to the office of Carl G., a 22-year old office manager of a food store, and after some discussion G agreed to ‘forget’ the whole incident upon payment to him of $500. A New York Criminal Lawyer said upon reflection, the shoplifter disavowed the scheme and reported it to the District Attorney, who arranged for payment of the money to G.

When the money was paid G was arrested for extortion. Although G had retained counsel he inquired of defendant S, a security officer in his store, if he knew anyone who could help him. The next day S informed G that defendant B, an ex-state senator, had great influence and could perhaps have the charge dropped but it might involve paying off some people. He arranged for G to meet B. At this meeting attended by all three, B and G had a discussion in which S did not participate.

G was advised to discharge his attorneys; B ‘guaranteed’ he could produce a satisfactory result because of his influence with certain public officials and agreed to make an inquiry to determine how much of a pay-off might be required. At that meeting G intended to go along with B suggestion to turn over money to resolve or drop the pending charges. Before the scheduled second meeting, G upon reflection concluded that B was a name dropper who couldn’t do anything for him and advised S he had reconsidered B proposition, decided to decline his help and withdrew from any arrangement. S did not attempt to induce G continued participation in the scheme. Thereafter G revealed all these events to his attorneys, who advised the District Attorney, and G agreed to co-operate with him in an investigation of the defendants. By pre-arrangement with the District Attorney, G office was equipped with a hidden microphone and S was called to his office. G asked him whether B would ‘take him back on’. S indicated that B had become very displeased B for backing out of the original deal because he had done 3 or 4 days of research on his case. He did however arrange for another meeting. The record shows no other meeting between G and S, only the one meeting at which all three were present, and no other meeting between S and B. G, on the other hand, conferred with B on two more occasions, during both of which he was equipped with a concealed transmitter tuned to a receiver in the District Attorney’s car. At the second meeting Bauer advised Gmerek that he had discussed the extortion charge with the District Attorney and certain other people (when in fact the record reveals he had never done so); that the charges could be favorably disposed of for $3,000 but he would try for $2,000, and he requested Gmerek to bring that sum in cash at their next meeting. Gmerek was furnished the money in marked bills by the District Attorney, and after it was given to Bauer the latter was arrested.

Published on: September 22, 2012

Court Hears Murder Case

by Stephen Bilkis

A man who owned a bar saw two of his customers having an argument while inside the bar. He went over to them and told them to take their argument outside. The two men left the bar and stayed on the sidewalk just outside the bar and the argument escalated into a very heated argument. A New York Criminal Lawyer said tne man pushed the other man down. The man who pushed the other drew a gun from his backside and fired into the crown inside the bar which by then was rubber-necking the argument outside. A patron inside the bar got hit when the ma outside fired into the bar. That man lay seriously wounded on the floor of the Bar.

Unnoticed by the man outside the bar, a police officer on beat patrol heard the commotion and the shots fired. On the other side of the street, as the gunman fired into the bar, the police officer engaged the gunman in a gunfight. A few seconds later, a car pulled up near the gunman and the gunman got inside the car. The police officer gave chase while still firing upon the car.

In the meantime, when the bar keeper and owner of the bar heard that shots were fired by the gunman outside the bar, he went behind the bar and took out his shotgun. When he heard the screeching of the tires on the street, he came out of the bar and stood next to the police officer. He fired his shotgun at the car.

Published on: September 21, 2012

Court Listens to Drug Charges

by Stephen Bilkis

Defendant Riley M. was arrested and charged with criminal possession of a controlled substance in the seventh degree (drug possession) (Penal Law sec. 220.03), criminally using drug paraphernalia in the second degree (Penal Law sec. 220.50), loitering in the first degree (Penal Law sec. 240.36), resisting arrest (Penal Law sec. 205.30) and disorderly conduct (Penal Law sec. 240.20). The defendant said that, defendant now moves pursuant to CPL 170.30(1)(a) and 170.35(1)(a) to dismiss the complaint for facial insufficiency on the ground that possession of cocaine residue is not sufficient to sustain a charge of criminal possession of a controlled substance in the seventh degree.

The issue in this case is whether the defendant is entitled to his motion to dismiss on the ground that possession of cocaine residue is not sufficient to sustain a charge of criminal possession of a controlled substance in the seventh degree (drug possession )

Possession of Cocaine Residue

Published on: September 20, 2012

Court Finds Citation Should be Dimissed for Lack of Service

by Stephen Bilkis

Probate laws are specific about timed deadlines. In New York, Surrogate’s Court Act §59(2) provides that timely service of a probate citation to appear or produce documents must be served in a certain period of time. The time that is allowed for a document to be produced once a person has been served with the citation depends on the location of the service. The time that is detailed takes into consideration the fact that the person who is served must also make arrangements to appear in court. Therefore, a New York Criminal Lawyer said the service time allotment for a citation for probate court depends on whether the counties are touching. If the counties touch on any side, then the person who is receiving the citation is given seven days to appear in court. If the county where the citation is served does not touch the county where it originated on any side, then the statute declares that the respondent must have ten days at minimum to respond to the citation.

On April 23, 1963, a woman who lived in Richmond County was served with a copy of a citation to respond to probate court in eight days. The woman filed a motion to extend the time that she is given to respond and also to dismiss the first citation to respond based on the fact that she was not provided adequate time to respond to the citation. The court looked at the history of New York as a colony in order to determine the woman’s standing. When New York was just a colony, it was divided into counties. The boundaries of these counties have been refined over years of legal enactments. In the case of this particular woman, she lives in Richmond County and the surrogates court that sent her the citation is located in New York county. The two counties do not touch on any side. A Westchester County Criminal Lawyer said the only county that borders Richmond County is the county of St. George. Therefore, it is not reasonable that the woman was only given eight days to respond to the citation. The citation should have had a return date that was at least ten days later than the date of service of the citation.

Since, the woman was not given the correct amount of time to prepare and return service that was required on the citation, the court agreed with her council that the citation should be dismissed. She would be issued a citation that was corrected and that would provide her with a full ten days in which to prepare her return. While it may not seem like a deciding factor in any situation that three days could alter the outcome of anything, when it comes to legal actions, it is important to ensure that the laws are being followed to the letter. If a court is allowed to shorten the number of days that are allowed to a person before they must return the citation, then they are preventing that person from taking all of the time that they are allowed by law to take in order to prepare their case. Preventing a person from being allowed to prepare their case, is a serious offense. A Suffolk County Criminal Lawyer said the American jurisprudence system is designed to ensure that everyone has the time to present the case that is critical to their legal standing. When a court shortens that time, then that person is not provided with adequate time to prepare their case. This court took that infraction seriously and did not allow that court to change the rules of the game to suit their particular purpose. Anyone who is required to respond to a probate citation is permitted to use all of the time that the statute allows them to prepare their case.

Published on: September 19, 2012

Defendant Moves to Suppress Physical Evidence

by Stephen Bilkis

This is an appeal by the defendant from a judgment of the County Court, Nassau County, rendered October 21, 1993, convicting him of murder in the second degree (two counts), robbery in the first degree (two counts), criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. A New York Criminal Lawyer said the appeal brings up for review the denial, after a hearing, of the branch of the defendant’s omnibus motion which was to suppress statements made by the defendant to law enforcement officials.

The issue in this case is whether the defendant is entitled to the suppression of his statements made to the law enforcement officials.

In this possession of a weapon case, the Court said that, the People established that the police had probable cause to arrest the defendant without a warrant. Probable cause may be supplied, in whole or in part, through hearsay information. Under the Aguilar- Spinelli rule, when probable cause is predicated in whole or in part upon the hearsay statement of an informant, it must be demonstrated that (1) the informant disclosed a sufficient basis for his or her knowledge, and (2) the informant was reliable. Further, the basis-of-knowledge and veracity requirements of Aguilar- Spinelli are analytically independent and each must be satisfied separately. “Information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest.

Published on: September 18, 2012

Defendant Contends That Dendants

by Stephen Bilkis

On September 24, 2005, Police Officer Frantz Demorin of the 47th Precinct was on uniformed patrol with his partner, Police Officer Merritt, traveling southbound on Bronx Boulevard in the Bronx. Officer Demorin was driving the patrol car and his partner was seated in the front passenger seat. As he approached the vicinity of 3308 Bronx Boulevard, Officer Demorin observed a parked vehicle with two individuals inside of it. Officer Demorin testified that the neighborhood was a “high prostitution and narcotics” area. Officer Demorin pulled up alongside the vehicle, with the passenger side of the patrol car next to the driver’s side of the vehicle, and asked the occupants what they were doing and whether they lived in the area. Officer Demorin had this conversation with the occupants “through his partner through the other car”. Officer Demorin testified that he did not recall “exactly what the answer was”.

A New York Criminal Lawyer said that, after making this initial approach and inquiry, Officer Demorin and his partner exited their patrol car and approached the vehicle on foot. Officer Demorin testified that they approached the car on foot “just to make a common inquiry”. When asked the nature of this inquiry, Officer Demorin replied, “as to what they were doing in the area, if they lived in the area”. Officer Demorin testified further that he made this inquiry “because of the nature of the area it’s a high prostitution and drug crime prone location”. He added that he was trying to find out “if any illegal activity was afoot”.

Officer Demorin walked around to the passenger side of the vehicle where a female passenger was seated and his partner approached the driver’s side. Officer Demorin testified that from where he was positioned on the passenger side of the vehicle, he was able to observe the driver, subsequently identified as the defendant, make a sudden “downward” gesture with his hand.

Published on: September 18, 2012

Defendant Contends Line of Questioning was Prejudiced

by Stephen Bilkis

A man was arrested and charged with criminal heroin possession and sale sometime in August of 1973. The man stood trial and opted to testify in his own behalf. A New York Criminal Lawyer said he testified that the police officers who arrested him pressured him into becoming a police informant. He also testified that when he refused to be a police informant, the police officers threatened him with bodily harm.

He testified also on direct examination that he had never been convicted of any drug crime in the past. He denied having ever dealt drugs on the street. He also vehemently denied that he ever committed criminal heroin possession and sale as testified to by the police officers when they testified for the People. The district attorney began his cross-examination by asking the accused if he has ever had any criminal conviction at all prior to his arrest. The accused admitted that he was convicted as a youthful offender. The counsel for the accused did not object to the line of questioning that touched on the past criminal convictions of the accused.

The records show that the district attorney during the cross-examination of the accused asked him if he has ever in his life seen heroin. The accused answered affirmatively and asserted that he was a former heroin addict. It was at this time that the district attorney cross-examined the accused on his heroin usage in the past. The lawyer for the accused did not object to the district attorney’s line of questioning. The district attorney proceeded to question him as to the extent of his heroin usage. The accused admitted that he sniffed heroin intermittently until he was arrested. He also admitted that prior to that, he used to smoke marijuana.

Published on: September 17, 2012

Court Decides Alleged Mistreatment of Citizens of Philadephia

by Stephen Bilkis

Two suits, permitted to proceed as class actions, were brought in District Court under 42 U.S.C. § 1983 by respondents, individuals and organizations, against petitioners, the Mayor of Philadelphia, the Police Commissioner, and others, alleging a pervasive pattern of illegal and unconstitutional police mistreatment of minority citizens in particular and Philadelphia residents in general. The petitioners were charged with misconduct ranging from express authorization or encouragement of the mistreatment to failure to act in such a way as to avoid recurrence.

A New York Criminal Lawyer said the principal antagonists involved in one case were two police officer, not named as parties, who were found to have violated complainants’ constitutional rights in three of eight incidents as to which the District Court made detailed factual findings and as to which a five-day suspension had resulted in one incident and no disciplinary action in another. In the other case, in only two of 28 incidents did the District Court conclude that the police conduct amounted to a deprivation of a federally secured right; it found no police misconduct in four incidents; in another, departmental policy was subsequently changed; and, though the court made no comment on the degree of misconduct occurring in the remainder, there were arguably 16 police violations of citizens’ constitutional rights in the year involved.

A Suffolk Criminal Lawyer said that, the District Court found, that the evidence did not establish the existence of any policy on the part of petitioners to violate the constitutional rights of respondent classes but found evidence of departmental discouragement of complaints and a tendency to minimize the consequences of police misconduct. The court found that only a small percentage of policemen commit violations of the rights of Philadelphia residents generally but that such violations could not be dismissed as rare or isolated. Petitioners were directed to draft for the court’s approval “a comprehensive program for dealing adequately with civilian complaints” to be formulated in accordance with the court’s “guidelines” containing detailed suggestions for revising the police manuals and procedural rules for dealing with citizens and for changing procedures for handling complaints. On petitioners’ appeal the Court of Appeals affirmed.