Criminal Procedure

Published on: March 18, 2013

Defendant Seeks to Withdraw his Plea Based on Duress

by Stephen Bilkis

Defendant was indicted in three separate indictments by a Grand Jury charging him with two counts of assault in the second degree, escape in the second degree and resisting arrest; two counts of grand larceny in the third degree; and two counts of grand larceny in the second degree and one count of grand larceny in the third degree, respectively. Thereafter, a New York Criminal Lawyer said the People moved to permit defendant to withdraw his not guilty pleas to all three indictments and substitute therefor a plea of guilty to one count of grand larceny in the third degree with respect to the second indictment and one count of grand larceny in the second degree with respect to the third indictment, in full satisfaction of all three indictments and of a felony offense for which he had been arrested but not yet indicted.

On appeal defendant urges that the plea bargain was illegal because it encompassed dismissal of a felony complaint for which he had not yet been indicted. A New York Criminal Lawyer said the court ruled that while County Court had no authority to dismiss the felony complaint and did not purport to do so, the District Attorney had the discretion and authority to decline to continue prosecution of that offense. His agreement to do so as part of a negotiated plea is certainly legal.

Defendant next contends that his guilty plea to grand larceny in the second degree, a class D felony, permitted a maximum sentence of 3 1/2 to 7 years as a second felony offender. However, because the plea agreement provided for a sentence of 4 to 8 years in the event that defendant failed to make restitution of $11,000, defendant claims that his plea was illegal. We disagree. The Court viewed County Court’s action as an inadvertent misstatement. At the time of sentencing County Court properly sentenced defendant to a prison term of 3 1/2 to 7 years. It has long been the rule that a court has the inherent power to correct its own error in imposing sentence.

Published on: March 18, 2013

Defendant Charged with Stealing Contents of Airplane Hangar

by Stephen Bilkis

In this case, a security officer assigned at an airline’s hangar at Kennedy Airport was approached on numerous occasions in the spring of 1976 by the defendant, who indicated an interest in securing entry to the hangar and in taking money from the safe therein. The security officer was offered the chance to make some money if he co-operated. A New York Criminal Lawyer said during the course of these conversations, he was asked, in increasing detail, about the alarm system in operation at the hangar. The security officer reported these conversations to his supervisor, the head of security of the airline.

The security officer had been in continual touch with his supervisors and the police had been alerted. Indeed, by the time Defendant was permitted into the hangar, one gate was manned by an undercover police officer posing as a security guard.

On October 26, 1976, Defendants called the security officer and told him they wanted to “come in that night.” At 11:15 P. M. The security officer met defendant at a diner. At 11:30 they entered a car and were joined by the co-defendants, who was carrying an attache case. Enroute to the airport, defendant discussed the job with the security officer. Defendant told him that in five years, “when its all over,” his share would be sent to him. Defendant advised him that in order to make it “look good” he would shackle him and take his gun. The other security guard would be tied and dropped off at the edge of the airport.

Published on: March 18, 2013

Defendant Contends She Did Not Know She was Possessing Drugs

by Stephen Bilkis

A New York Criminal Lawyer said this case involves a 17 year old juvenile who is challenging an adjudication made against her for possession of drug paraphernalia.

Case Background

The girl was driving her car with three friends. She was involved in a car accident. When the police arrived at the scene of the accident the driver’s side door was opened. The juvenile stated that the car belonged to her mom, but she used it quite often. The officer looked in the car through the open door and saw a glass item on the floorboard. He recognized it as a pipe that is often used to smoke illegal substances.

Published on: March 5, 2013

Defendant Charged with Criminal Facilitation in the 4th Degree

by Stephen Bilkis

An appeal was made by the accused man from a judgment of the County Supreme Court rendered on October 26, 1983, convicting him of four counts of criminal facilitation in the fourth degree, upon a jury verdict, and the imposing sentence. A New York Criminal Lawyer said the judgment was affirmed and the matter was remitted to the County Supreme Court for further proceedings pursuant to the Criminal Procedure Law.

Pursuant to the defense counsel’s request, the trial court charged criminal facilitation in the fourth degree as a lesser included offense of grand larceny in the second degree and attempted grand larceny in the second degree. The accused man was ultimately found guilty of four counts of criminal facilitation in the fourth degree and acquitted of all other charges. The accused argues, as he did on his motion to set aside the verdict, that criminal facilitation in the fourth degree is not a lesser included offense of grand larceny in the second degree and attempted grand larceny in the second degree and that the defect in erroneously charging such a request is non-waivable inasmuch as it goes to the court’s subject matter jurisdiction. A New York Criminal Lawyer said criminal Term resolved both issues against the accused man. Since the accused man effectively waived any error in the submission of the charge of criminal facilitation in the fourth degree to the jury, the Appellate Court affirms.

A comparative evaluation of the two operative statutes, grand larceny in the second degree and criminal facilitation in the fourth degree reveals that the latter is not a lesser included offense of the former because it is theoretically possible for a person to commit the crime of grand larceny in the second degree without intending to aid anyone else in the commission of a felony.

Published on: March 5, 2013

Defendant Claims Drugs Weren’t His

by Stephen Bilkis

A New York Criminal Lawyer said the defendant is appealing two orders that were made by the County Circuit Court. The first order that is being appealed denied his motion for post-conviction relief. The second order revoked his probation and imposed a prison sentence.

The defendant raises three main points on appeal. First, the court erred in denying his motion for relief because he was on probation and was not a prisoner in custody under the sentence when he made the motion. Second, the evidence was not sufficient in the case to support the fact that he had constructive possession of the legal illicit drugs. Finally, he argues that the court erred in his sentencing by not following sentencing guidelines.

Case Background

Published on: March 4, 2013

Court Discusses Single Transaction Rule in Marijuana Possession Case

by Stephen Bilkis

The appellant in this case was charged with selling a controlled substance, cannabis and for having more than five grams of cannabis. A New York Criminal Lawyer said the appellant was convicted on both charges and was sentenced separately for each of the crimes. The appellant argues that the trial court has violated the single transaction rule by imposing separate sentences for the sale and the possession of marijuana.

Case Background

The evidence that was shown at trial revealed that there were two undercover police officers who met three individuals at a bar in town. One of the individuals told the undercover agent that they could obtain a quantity of marijuana. The agents were driven to another bar by their companions.

Published on: March 3, 2013

Juvenile is Charged with Cocaine and Marijuana Possession

by Stephen Bilkis

A juvenile is appealing adjudications made against him that found him guilty of possession of cocaine and marijuana. A New York Criminal Lawyer said he states that the trial court erred when they denied his motion for judgment of acquittal when the state had failed to present substantial evidence to prove constructive possession of the contraband.

Adjudicatory Hearing

During the adjudicatory hearing there was testimony that revealed that the defendant along with a friend asked another person for a ride to a woman’s house to pick up some items. The defendant rode in the back of the individual’s truck. The defendant and his friend got out of the truck at the house. The young men did not know that the house was under surveillance.

Published on: March 2, 2013

Defendant Found With Stolen Prescription Pad

by Stephen Bilkis

The Facts of the Case:

On 9 October 1980, at approximately 11:30 A.M., the defendant was arrested on East 40th Street in Manhattan, in possession of a blank prescription pad bearing the name of a certain doctor, a hypodermic syringe, twelve tablets of Triavil, and one bottle of Procaine. Thereafter, a New York Criminal Lawyer said the arresting officer, a Police Officer of the 9th Precinct, telephoned the doctor concerned at his Bronx office, inquiring whether the doctor had been burglarized. The doctor informed the officer that he was not aware of any burglary at his Manhattan or Bronx office, but that the man arrested was not authorized to take, use, or possess the property. Thus, the officer charged the defendant with Criminal Possession of a Controlled Substance in the Seventh Degree, Criminally Possessing a Hypodermic Needle, and Criminal Possession of Stolen Property in the Third Degree. Defendant was given a Desk Appearance Ticket, returnable on 24 October 1980. A misdemeanor complaint containing these charges was filed with the court.

On the same day, at about 3:00 P.M., when the aforesaid doctor arrived at his Manhattan office, he discovered that it had indeed been burglarized. The doctor reported the incident and officers from the 17th Precinct Burglary Unit responded. On this call, one of the Police Officers lifted a latent fingerprint from a cigarette package apparently left by the burglar. The doctor informed the Burglary Unit officers of the earlier telephone call he had received at his Bronx office, but was unable to recall the name, shield or command of the earlier caller. All attempts of the 17th Precinct Burglary Unit to ascertain the identification of that first caller proved unsuccessful.

Published on: March 1, 2013

Defendant Contends Sobriety Check Point was Illegal

by Stephen Bilkis

At around midnight of April 15, 1992, the police set up a DWI checkpoint at the corner of Clinton and Stanton Streets in Manhattan. The police officers set up the checkpoint so that all the passing cars would be funneled into one lane and every motorist would have to pass the checkpoint.

A New York Criminal Lawyer said when the accused drove up to the check point, the police officer was standing near the driver’s side. He knocked on the window and the driver rolled down his window. The police officer asked the driver something which he could not remember when he testified at the probable cause/ preclusion hearing. Even the accused could not remember what the police officer asked him.

At this time, the police officer asked the driver to pull over to the side of the street because he saw that the driver had watery bloodshot eyes and he could smell alcohol on his breath. When the driver was already parked on the side of the road, the police officer asked him to exit the car. The driver was unsteady on his feet. The driver told the police officer that he drank two beers and had to shots of vodka. The police officer also found an empty bottle of vodka in the car.

Published on: March 1, 2013

Court Determines if 18yr. Old Must Register as a Sex Offender Under SORA

by Stephen Bilkis

An 18 year old man was indicted in Florida for Sexual Battery in October 1997. When he was arrested and arraigned under the indictment, the 18-year old entered a nolo contendere plea (this means he did not plead guilty or not guilty but that he was not contending the indictment). A New York Sex Crime Lawyer said the trial court withheld a judgment of conviction and instead ordered that the 18-year old be placed under order of supervision. He was required to be under four years’ probation. The Florida trial court also ordered the 18-year old to register as a sex offender in the state of Florida. This sexual offender registry is the equivalent of New York’s sex offender registry under the Sex Offender Registration Act.

The 18-year old finished his four-year probation. In February 2006, the 18-year old wrote to the Criminal Justice Services of the state of New York to inform it that he was a registered sex offender in Florida who was contemplating on moving to New York.

The Criminal Justice Services sent him the sex offender registration forms by mail and sent him a letter requiring him to register under the SORA. A New York Criminal Lawyer said the Board also recommended that he be registered as a sex offender. The Supreme Court in Kings County assessed his risk level as level 1.