Criminal Procedure

Published on: September 14, 2012

Court Hears Motion to Amend Grand Jury Instruction

by Stephen Bilkis

The People of the State of New York are the plaintiffs in this case against the defendant Luis Pantojas. This case is being heard in the Supreme Court of the State of New York in Bronx County, Part C. The People have moved for an order to amend the direction of a duly empanelled Grand Jury from Bronx County to include the phrase “acting in concert with others” in the proof that was submitted in the case.

Case Background

A New York Sex Crime Lawyer said on the 19th of February, 1986, the Grand Jury heard evidence against the defendant, Luis Pantojas in regard to crimes that allegedly occurred on the 11th of February, 1986. The incident included the defendant, two other males that were not found and a fourteen year old girl complainant. The complainant accused the defendant of accessorial sodomy and accessorial rape.

Published on: September 13, 2012

Court Discusses Plea Bargain

by Stephen Bilkis

An undercover police officer posed as a buyer of cocaine which was clandestinely sold at a fast food joint. The undercover police officer was able to buy six small bags of cocaine on six separate occasions. With the cocaine bought from the fast food joint, the police officers had probable cause to apply for a search warrant and to arrest the employees of the fast food joint.

A New York Criminal Lawyer said the police officers arrested the workers of the fast food joint and they searched the fast food joint and found seventy-eight bags re-sealable bags filled with white powdery substance which was later tested and found to be cocaine. The seventy-eight bags of cocaine were located in various areas of the fast food joint and some were found in the pockets of the employees of the fast food joint.

The Grand Jury handed down an indictment of twenty-one counts of criminal cocaine possession (drug possession) and sale. After the arraignment, the manager of the fast food joint was told by his lawyer that under the laws in effect at that time, the sentence he would most likely be given if proven guilty would be one to three years for every count which would amount to an indeterminate sentence of about eight to twenty-five years.

Published on: September 12, 2012

Court Discusses Rape by Forcible Compulsion

by Stephen Bilkis

Defendant pleaded guilty to the sole count of superior court information charging him with third-degree rape for engaging in sexual intercourse with a person less than 17 years old. The majority upholds an assessment of 10 points for forcible compulsion even though defendant never was charged with rape by forcible compulsion in the superior court information, and an assessment of 15 points for refusing to accept responsibility because he denied he was guilty of a forcible compulsion rape. The Supreme Court, Bronx County adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act. An New York Criminal Lawyer said the defendant appealed.

The issue in this case is whether defendant is guilty of the crime charged.

The Court can uphold the assessment for forcible compulsion only if the People met their burden of proving forcible compulsion by clear and convincing evidence. That is, only if the People proved it “highly probable” that defendant committed the rape by forcible compulsion. The sole item of proof supporting this assessment is plainly hearsay, a statement in the felony complaint, albeit one sworn to by the victim, who was 13 years old at the time, to the effect that defendant committed the act of intercourse while another person held her down and a third person held her leg open. The Court agrees with the majority that the assessment for forcible compulsion is not precluded by the fact that defendant was not charged in the superior court information with forcible rape.

Published on: September 12, 2012

Court Decides Jurisdiction in Drug Crime Case

by Stephen Bilkis

In this criminal case, the location of the premises where the alleged drug crime transactions took place is 151 West 228th Street. At the Grand Jury presentation the Assistant District Attorney elicited testimony from the undercover police officers who participated in the sales of drugs and in the arrests of the defendants. A New York Criminal Lawyer said the officers were members of the Bronx Drug Homicide Task Force and the Bronx Narcotic Major Case Unit. They were conducting a long term buy operation at this location and drug purchases were made there on October 18, 1994, October 21, 1994, November 3, 1994, November 4, 1994, and December 3, 1994. Arrest warrants were executed on December 8, 1994.

After the indictment was voted and before motions were made, it came to the attention of some of the defense attorneys that the premises were not in the Bronx but rather in Manhattan. This information was given to the attorney during another proceeding.

Counsel argues strenuously that unless the People prove proper venue before the Grand Jury, the Bronx Supreme Court does not have jurisdiction to try this case and the indictment must be dismissed.

Published on: September 12, 2012

Defendant Brings Motion to Surppress Motion for Incriminating Statements

by Stephen Bilkis

Defendant was indicted for second degree murder, second degree assault, and second degree weapon possession in connection with a shooting in Brooklyn. One man was shot to death and another was wounded. Thereafter, the Defendant was arrested for a drug crime in Manhattan where he was represented by counsel for the drug charge.

A New York Criminal Lawyer said the Detective from Brooklyn traveled to Manhattan to “pick up” Defendant and bring him to the precinct in Brooklyn for a lineup. Before these lineups, at about 9:00 P.M., Miranda warnings were issued to defendant, who claimed that he knew nothing about the shooting; after the lineups, the Brooklyn Detective advised defendant that he was “charged with homicide.”

Thereafter, they escorted defendant back to Manhattan for his arraignment for the drug crime. After defendant was arraigned and released on his own recognizance, the Brooklyn Detective arrested him for homicide to be brought back later on to the Brooklyn Precinct. The Detectives then took Defendant back to where he had been sitting in the courtroom because “the attorney . . . wanted to speak to him.” They also testified that he overheard the counsel tell defendant that he was “not going across the bridge into Brooklyn to represent him,” and that he didn’t “represent him in the other case. He represents him in the drug case. He’ll have an attorney for his new case in Brooklyn. He also said, I advise you not to speak to the police because I can’t tell you that you cannot speak to the police but I’m advising you not to.”

Published on: September 11, 2012

Defendant Claims Court Erred Under SORA Guidelines

by Stephen Bilkis

A man lived in his mother’s house with his sister who was a minor. One day, the man chanced upon his sister in the bathroom of their house. The man tried to rape his sister. The sister resisted and was able to escape from her brother. She reported the incident to their mother and she reported the incident to the police.

A New York Criminal Lawyer said the brother was charged with attempted rape in the first degree and sexual abuse in the first degree. Prior to the arraignment, the lawyer for the man asked the trial court to order a psychiatric evaluation of the accused. Two psychiatrists examined the accused and they had similar findings. The first psychiatrist rendered an opinion that the accused suffered from psychiatric disorders which were not specified. A second psychiatrist rendered an opinion that the accused suffered from psychosis. Both of them agreed on the finding that the accused was a threat to himself and to others but that he was fit to stand trial because he was capable of understanding the nature of the charges against him and he can assist in defending himself. Both psychiatrists also recommended that the accused be hospitalized. For this reason, the accused was placed under the custody of the Commissioner of Mental Health.

The accused pleaded guilty to sexual abuse in the first degree and he was sentenced to six months imprisonment and ten years probation.

Published on: September 11, 2012

Claimant Claims She was Incarcerated too Long

by Stephen Bilkis

The claimant who is now 54 years old, has a long history of drug abuse and a lengthy criminal history, consisting primarily of drug crime offenses. Lapidus dropped out of school in the seventh or eighth grade because she was having problems at home, and began using speed and heroin as a teenager. Following a stay in a rehabilitation facility in the late 1970s, the claimant was able to stop using drugs for a period of about nine years. However, toward the end of 1987, after both of her parents became seriously ill and passed away, Lapidus began misusing the valium pills which had been prescribed to her for depression and insomnia. Her drug use then escalated to include heroin possession.

A New York Criminal Lawyer said that on November 14, 1987, the claimant was arrested with a codefendant, on charges, of assault, burglary, and robbery. At the time of this offense, the codefendant was her boyfriend. The victim of the offense was a former boyfriend had ended a relationship with several months earlier. A Bronx Criminal Lawyer said that, two days after her arrest, claimant was arraigned in the Criminal Court of the City of New York and released on her own recognizance. She and the codefendant were subsequently charged, in a 12-count indictment, with multiple offenses including assault in the second degree. When the claimant failed to appear for arraignment on the indictment, a bench warrant was issued. Codefendant was thereafter arraigned on the indictment on April 5, 1988, and he alone proceeded to trial in December 1988. At the conclusion of the codefendants trial, the jury found him guilty of assault in the second degree and, he was sentenced to an indeterminate term of 1½ to 4½ years of imprisonment. Although the claimant did not participate in the trial and was not tried in absentia, a part clerk mistakenly recorded on the court file jacket that she had been found guilty of the identical charge and sentenced on the same date as codefendant. This incorrect information was entered into the court’s computer system, and was reported to the New York State Division of Criminal Justice Services (hereinafter DCJS), the agency responsible for maintaining the criminal histories of individuals arrested in this state. Thus, the purported 1989 assault conviction became part of the claimants criminal record.

In the years following her arrest for the assault of her former boyfriend, claimant was arrested 14 additional times, and convicted of a number of misdemeanor offenses and violations. On August 25, 1997, claimant was arrested and subsequently indicted in New York County for criminal sale of a controlled substance in the third degree (drug possession). Following a jury trial, she was convicted of the charged offense. Prior to sentencing, the People filed a predicate felony statement alleging that on January 9, 1989, Lapidus had previously been convicted of the felony of assault in the second degree in Kings County. When the claimant appeared for sentencing on the New York County indictment on January 13, 1998, she was arraigned on the predicate felony statement, and advised of her right to controvert any of the allegations in the statement and to challenge the constitutionality of her alleged prior conviction. However, when asked if the allegations set forth in the predicate felony offender statement were true, claimant answered “yes,” and stated that she did not wish to challenge the constitutionality of her prior conviction. She was then adjudicated a second felony offender and was sentenced, in accordance with the prosecutor’s recommendation, to a term of 4½ to 9 years of imprisonment. The sentence imposed was the minimum permissible term for a second felony offender convicted of a class B felony.

Published on: September 10, 2012

Defendant Moves to Suppress Physical Evidence

by Stephen Bilkis

An undercover policeman, equipped with a hidden transmitter, entered a social club and, for fifty dollars, purchased cocaine from a man in the front room. He left the club and radioed his backup team. Because the transmission was garbled, they understood only that he had made a buy. The sergeant in charge ordered the team to enter the club and secure it so that no one could leave. A New York Criminal Lawyer said he then went down the street to meet the undercover who described the seller: a bearded black male, thirty years old, medium build, wearing a tan cap, brown leather jacket, glasses, white sneakers, dungarees, and a large silver bracelet.

A Bronx Drug Crime Lawyer said that, the sergeant entered the club, found six or eight persons in the front room, but none of them fit the description. They were released. In the back room were twenty to thirty-five people shooting craps. (The defendant claims he was the banker of the game and thus handled all of the wagered money.) The players were made to walk in single file past the sergeant. The defendant was held because he “fit the description a hundred percent”. But, belying certainty, the sergeant also held three or four others because they “partially fit the description”. He had all of them frisked for weapons. Then, obviously to pinpoint the drug seller among the suspects, the sergeant asked which of them had any money. When the defendant and another acknowledged that they had the sergeant said, “Let me have it”. A New York Criminal Lawyer said the defendant handed over $101, included in which were the marked fifty dollars the undercover had used in the purchase. The defendant was told he was under arrest and the others were released.

The defendant was taken by police car to the station where the undercover looked at him through a one-way mirror. He said that “he thought it was him, but he was not sure”. The sergeant said “If you are not a hundred percent sure it’s him, then I’m going to release him”. Again, the undercover responded that “he could not be a hundred percent sure at that time”. While the process to release the defendant was going on, a cap and glasses found in the transporting car were placed on him. After that the sergeant told the undercover that the defendant “fits the description. He has the bracelet. He has the beard, the cap. He has the glasses and he has the jacket. He has the money”. The undercover then identified the defendant as the drug seller.

Published on: September 10, 2012

Defendants Court Had Improper Jurisdiction in Rape Case

by Stephen Bilkis

On December 10, 1980, two men armed with a shot gun entered a fast food restaurant in Nassau County. They threatened the employees with bodily harm if they did not hand over the cash in the cash box. When the two female employees handed to the two armed men all the cash from the cash box, the men forced the women to go outside the restaurant. A New York Criminal Lawyer said they forced the women to ride in their car which was parked outside the restaurant.

The two armed men drove for twenty minutes from the fast food restaurant in Nassau County to a dead end street somewhere in Suffolk County. During the drive, the men took turns feeling up the women’s skirts and shirts. The men fondled the women’s breasts and sex organs.

When they got to the dead end street in Suffolk County, the men took turns raping the two women. When the men were exhausted, they threatened the women and their families with death should they report the rapes to the police. A New York Sex Crimes Lawyer said the two men then let the two women go.

Published on: September 10, 2012

Defendant Contends Court in Violation of 5th Amendment

by Stephen Bilkis

The facts of these “buy-and-bust” cases are straightforward. In this case, an undercover narcotics officer approached a man entering a store in Manhattan and asked where he could purchase drugs. Without answering, a the man walked over to defendant, asked him if he had “anything” and told him that the undercover was “looking.” Defendant said “you know how it works.”

Defendant then whistled across the street to defendant and raised two fingers. Defendant instructed the officer to follow the man across the street to a Chinese restaurant around the corner from a school. The two men entered the restaurant with defendant following behind them. Inside the restaurant, the man told defendant said to “give the officer one and to give me one too.” After handing the man a “small object” in exchange for a sum of money, defendant asked the officer, “how many do you want?” The officer replied, “one,” and handed Sepulveda $10 in prerecorded buy money in exchange for a glassine of heroin.

After the sale, the officer radioed the field team that he made a “positive buy” and gave a description and location of the sellers. Within minutes, the field team arrived at the location and apprehended both defendants, both of whom matched the descriptions given by the undercover officer. Shortly thereafter, the undercover officer made a drive-by confirmatory identification of both men. Although the arresting officer recovered heroin (drug possession) and prerecorded buy money from no drugs were recovered from defendant.