Criminal Procedure

Published on: September 16, 2012

Defendant Questions Probable Cause in Arrest

by Stephen Bilkis

Two known low-level drug dealers who sold marijuana were found shot in the apartment they shared. The police were investigating the murders. The police then questioned their known associates. A New York Criminal Lawyer said one of the murder victims’ known associates the police talked to admitted that he was in the apartment on the day before the murders and saw a man from the Caribbean buy half a pound of marijuana from the victims.

The known associate also told the police that the man from the Caribbean agreed to buy at least thirty kilos of a new shipment of marijuana from the murder victims. They agreed to meet the next day so that the man from the Caribbean can finally buy the marijuana. The police detective showed the known associate of the murder victims and he identified a picture of the man from the Caribbean.

The police detectives went in search of the man from the Caribbean and found him in an apartment. When the police were near the apartment door, they could smell the odor of marijuana. So the police detectives pounded on the door of the apartment. The man from the Caribbean came to th door. A New York Criminal Lawyer said the police detectives could smell the marijuana odor emanating from the open doorway of the apartment. They then asked the man from the Caribbean to step out of the apartment. They frisked him and handcuffed him. The officers asked him if there were any other occupants or residents in the apartment and the man from the Caribbean said that his brothers and his girlfriend were in there.

Published on: September 16, 2012

Defendant Files Application for Resentencing

by Stephen Bilkis

A man was convicted of having committed the crime of criminal possession of a weapon in 1993 and he was sentenced to serve one year in jail. In 1995, the same man pleaded guilty to a charge of federal racketeering and conspiracy. He served a prison term of six years.

In September 2003, the man was arrested by police officers who had been tailing and conducting surveillance on him. A New York Drug Crime Lawyer said he was seen selling one bag of heroin to another man. When he was arrested, the police officers frisked him and found eighteen other bags of heroin in the pocket of his jacket. He was charged with criminal heroin possession in the third degree. He was convicted by a jury and sentenced to a maximum prison term of twenty years and a minimum prison term of ten years.

He appealed but his appeal was denied after two years. In the meantime, the man had finished serving six years of his minimum prison term of ten years. While he was serving his prison term, the legislature of New York passed the Drug Reform Law. A New York Criminal Lawyer his new law aimed to reduce the prison sentences of low-level drug offenders by allowing them to apply for resentencing. If approved, they will be resentenced to a lower sentence provided that when the convicted felon applies for resentencing, he is currently in the custody of the Department of Corrections as he is serving a prison sentence; he was convicted of a Class B felony which was committed before the law was made effective; and the man was not convicted of another crime within the last ten years.

Published on: September 16, 2012

Court Looks at Parole Issue

by Stephen Bilkis

Petitioner was convicted in the Supreme Court, New York County, of the crime of manslaughter in the first degree and was sentenced to imprisonment for an indeterminate term of 15 to 25 years. On January 10, 1973 petitioner was paroled with a maximum expiration date of March 15, 1989. A New York Criminal Lawyer said that, while in Puerto Rico with permission of his parole officer, petitioner was arrested on an indictment returned by a Federal Grand Jury in the Southern District of New York, charging violation of Federal drug laws.

In early January, 1976 petitioner was extradited to New York and incarcerated at the Metropolitan Correctional Center in Manhattan. Petitioner’s parole officer visited him in Federal custody and questioned him about his arrest but did not serve him with parole violation charges. On March 20, 1976 petitioner was found guilty of conspiracy to violate Federal narcotics laws. Thereafter, the Board of Parole declared petitioner delinquent and issued a parole violation warrant against him. Petitioner was sentenced to a term of 7 1/2 years imprisonment on the Federal conviction.

On May 5, 1976 petitioner was transferred from the Metropolitan Correctional Center in New York City to the Federal Correctional Facility in Atlanta, Georgia. New York officials attempted to lodge the parole violation warrant at the Metropolitan Correctional Center. In light of the fact that petitioner had been transferred to Atlanta on the previous day the warrant was forwarded to that facility where it was eventually lodged against petitioner.

Published on: September 15, 2012

Court Decides Drug Charges

by Stephen Bilkis

On November 29, 1976 petitioner was indicted with a drug crime in the United States District Court, District of New Jersey, and charged with several counts, the first of which alleged that from January 1, 1976 to November 18, 1976 certain defendants, including petitioner, “did knowingly and wilfully combine, conspire, confederate and agree together with each other and others to manufacture, possess with intent to distribute and to distribute methamphetamine hydrochloride, a schedule II controlled substance”. In December, 1976 petitioner was indicted by the Sullivan County Grand Jury and charged with three counts, the first being cocaine possession of a controlled substance (methamphetamine); the second being conspiracy to engage in the illegal manufacture, possession and sale of methamphetamine; and the third being criminally using drug paraphernalia for the purpose of preparing methamphetamine.

Petitioner entered a plea of guilty to the first count of the Federal indictment and was sentenced to an indeterminate period of imprisonment, with a maximum of three years. Petitioner has commenced this proceeding to prevent respondents from prosecuting him on the Sullivan County indictment.

A New York Criminal Lawyer said the respondents concede that petitioner’s plea to the Federal conspiracy charges precludes prosecution upon the conspiracy count of the Sullivan County indictment. There remains, however,the charges of criminal possession and criminally using drug paraphernalia.

Published on: September 15, 2012

Court Looks at Illegal Contraband Case

by Stephen Bilkis

In this case, two police officers were on routine motor patrol in Bronx County when they observed a car with its trunk lock “popped out.” They directed the driver of the car to stop. As the officers approached the car, a single passenger in the rear appeared to be fumbling with something. That passenger opened the rear door and attempted to flee. One of the officers grabbed him, and, after a struggle, succeeded in removing defendant’s hand from his left front outer jacket pocket. The officer recovered a brown paper bag which, upon later discovery, contained cocaine of an aggregate weight of 8 7/8 ounces. A New York Criminal Lawyer said the motion court concluded that the evidence, before the Grand Jury, of defendant’s knowledge of weight was legally insufficient to sustain the charge of criminal cocaine possession of a controlled substance in the first degree. It, therefore, reduced count one of the indictments from criminal possession of a controlled substance in the first degree to criminal possession of a controlled substance in the seventh degree. The Appellate Division affirmed.

The police stopped defendant for a traffic infraction while he was driving in Bronx County. A plastic bag containing 3 1/4 ounces and 3 grains of cocaine was recovered from the automobile. The motion court found no evidence of defendant’s knowledge of the weight was presented to the Grand Jury. It reduced count one of the indictments from cocaine possession of a controlled substance in the second degree to criminal possession of a controlled substance in the seventh degree. It also dismissed count two of the indictment which charged criminal possession of a controlled substance in the third degree. The Appellate Division modified in the case by reinstating count two, and otherwise affirmed.

A New York Criminal Lawyer said that, in a joint memorandum which determined both Sanchez and Garcia, the Appellate Division noted that the trial court properly concluded that the evidence before the Grand Jury was insufficient to establish that defendants possessed the requisite knowledge of the weight of the substance they possessed. Regarding the defendant, the Appellate Division determined that the trial court erred by dismissing count two of the indictment charging defendant with criminal possession of a controlled substance in the third degree. The Court reasoned that intent to sell may be established by proof that a defendant possessed a significant quantity of drugs. Thus, as to the present case, the Appellate Division reinstated count two of the indictment. A Judge of this Court granted the People leave to appeal in both cases, and, in the present case, granted defendant leave to cross-appeal.

Published on: September 15, 2012

Defendant Files Motion to Supress

by Stephen Bilkis

The defendant in this case was charged with Rape in the first degree. He filed a motion to suppress any line-up or photograph identification. He argued that the result of a line-up conducted by the Suffolk County Police Department violated his rights under the Fourth, and Fourteenth Amendments of the United States Constitution, and his privilege against self-incrimination and his right to counsel as guaranteed by the Fifth, Sixth and Fourteenth Amendments of the United States Constitution.

A New York Criminal Lawyer said the Prosecution opposed defendant’s motion, stating that ” . . . defendant has failed to make any factual allegations which are required pursuant to § 710.60 subd. (1) of the CPL . . . ” and therefore, “defendant’s motion . . . should be denied as a matter of law pursuant to § 710.60(3)(b) of the CPL.” However, in the alternative, the Prosecution asserted that defendant’s constitutional rights were not violated.

In support of his motion, Defendant presented an affirmation made by his attorney upon information and belief, the source of his information and the grounds for his belief being the defendant. The affirmation states that the lineup conducted by the Suffolk County Police Department ” . . . was conducted without defendant’s consent or waiver of the presence of counsel . . . ” and that defendant was ” . . . physically forced to participate in a line-up without the benefit of his Miranda warnings or presence of counsel known to the members of the Sixth Precinct to be at that time, representing defendant.”

Published on: September 15, 2012

Defendant Had Eviction Notice Filed Against her for Drug Activity

by Stephen Bilkis

On August 2006, a detective recovered a loaded handgun and approximately 300 small glassine and zip lock bags which were later tested and found to contain a total of 1/8 oz + 0.2 grains of heroin and 1/8 oz + 4.5 grains of cocaine from a woman’s bedroom. An individual who does not live in the apartment and who was not named as an opponent was arrested at the scene. The woman was later arrested at the apartment when she arrived home from work.

a New York Criminal Lawyer said the woman testified that she was a working single mother of two children, who were 10 and 12 years old at the time. During the summer, her sister generally watched her children when she went to work. When her sister was unavailable to see her children, the woman had to ask her neighbors to watch her children during working hours. The man was one of the neighbors who lived with his mother in the same building.

The woman testified that the man did not live in her apartment, that he did not have keys to her apartment and that he watched her children approximately six or seven times during that summer.

Published on: September 14, 2012

Court Discusses Plain View Doctrine

by Stephen Bilkis

This involves a drug crime case where the court concluded that the warrantless seizure of the package by the police officers to the defendant was proper.

The police obtained a search warrant for 2130 East Tremont Avenue, Apartment 7E, in Bronx County in conjunction with a long-term narcotics investigation, during which undercover officers had purchased large amounts of cocaine from occupants of the subject apartment on several prior occasions. The police searched the apartment and recovered a large amount of currency, narcotics, a gun and several forms of drug paraphernalia from inside the apartment. Police officers stationed outside the building recovered drugs wrapped in a paper towel, which had been thrown out of a window by one of the occupants of the apartment. A New York Criminal Lawyer said that after hearing a knock on the door, the police opened the door and defendant entered the apartment. Defendant raised his hands in the air, and a brown paper package fell out from underneath defendant’s jacket to the floor. Upon opening the bag, police officers found a baggie containing half a kilo of cocaine and defendant was arrested for cocaine possession.

Defendant moved pre-trial to suppress the physical evidence recovered by the police.

Published on: September 14, 2012

Defendant Contends his Right to Counsel was Violated

by Stephen Bilkis

In January 1971 a liquor store was robbed by four armed men. While they were robbing the liquor store, the owner of the liquor store was shot and he died. The police who investigated the liquor store robbery arrested three of the four armed men. A New York Criminal Lawyer said the police officer charged them with murder, attempted robbery and criminal possession of a weapon. The fourth man was not found by the police. A warrant for his arrest was outstanding.

Six months after the liquor store robbery, the fourth armed man in the robbery was scheduled to be arraigned on a charge of criminal cocaine possession. As he was waiting for his scheduled arraignment and he was in the holding cell, a police officer who was investigating the liquor store robbery and murder was given an anonymous tip that the fourth gunman was the same as the accused who was scheduled to be arraigned for the criminal cocaine possession.

The police officer went to the holding pen and asked the accused in the criminal cocaine possession charge what his real name was. The accused gave his real name which was the same name given up by the three armed men who were arrested for the liquor store robbery and murder. A New York Drug Crime Lawyer said the police officer then asked the accused if he knew anything about the liquor store robbery. The accused told the police that he did not know anything about that and that it was another person who was involved in the robbery.

Published on: September 14, 2012

Court Decides Whether to Disbar a Lawyer

by Stephen Bilkis

In October 1993, a lawyer, a member of the New York Bar was arrested at 9pm on a street corner in the Bronx. He was arrested and charged with criminal crack cocaine possession.

In June 1998, the same lawyer was apprehended by police officers at a street corner after he purchased crack cocaine. A New York Criminal Lawyer said he was charged with criminal crack cocaine possession. He was later sentenced to three years’ probation. Also in June 1998, the lawyer was arrested and charged with obstructing governmental administration. He was sentenced to three years’ probation as well. At that time, the lawyer offered a New York police officer a sum of money in exchange for the dropping of the drug crime charged against him.

He was also charged under the Code of Professional Responsibility, a law that regulates the conduct of members of the Bar. He was charged with engaging in conduct detrimental to the administration of justice. He was also charged with engaging in conduct adversely reflecting on his fitness to practice law. Aside from his criminal conviction, being a member of the Bar, he also faced other civil consequences of his arrest and conviction by way of an administrative hearing to determine his fitness to continued membership in the New York Bar.