Westchester County

Published on: October 25, 2012

Court Discusses Validity of Search Warrant

by Stephen Bilkis

This case involves the People of the State of New York against three defendants. The case is being heard in the Criminal Term of the Supreme Court, Suffolk County Part II. The defendants in the case, they have been charged with one count of criminal possession of a controlled substance in the second degree(drug possession). One defendant Daphne Barber has also been charged with criminal possession of stolen property in the first degree.

Defendants Argument

A New York Criminal Lawyer said the defendants have motioned both orally and in writing for two search warrants that were issued on the 24th of June and the 2nd of July in 1981 to be removed and for all the evidence including the cocaine that was seized to be suppressed. Defendant Eric Jean did not move with respect to the indictments against him and is not a part of this hearing.

Published on: October 15, 2012

Defendants Claim Insufficient Evidence in Theft Charges

by Stephen Bilkis

The petitioner was adjudicated delinquent on the charge of petit larceny of items valued at $100 or more but less than $300, a first degree misdemeanor. Although the State presented evidence about the items taken, it offered no evidence of their value. The petitioner failed to object, however, or to move for judgment of acquittal on this ground. The petitioner raised the claim for the first time on appeal, asserting fundamental error. The Fourth District held that the issue must be preserved for appeal. Similarly, in the conflict case, another petitioner argued for the first time on appeal that a delinquent adjudication for first-degree petit theft must be reduced to second-degree because the State failed to prove the value of the stolen items. The Second District Court of Appeal, relying on a similar case decision receded from on other grounds concluded that the failure of proof on the essential element of value was fundamental error and reversed.

In a similar case, the opponents were convicted of two counts of breaking and entering with intent to commit grand larceny. As did the petitioner, on appeal they alleged that the evidence was insufficient to sustain the conviction on the element of the value of the property stolen. The opponents contended that the State thus failed to present a legitimate case and that it constituted fundamental error. A New York Criminal Lawyer said citing a line of prior decisions, the court rejected the argument and held that unless the issue of sufficiency of the evidence to sustain a verdict in a criminal case is first presented to the trial court by way of an appropriate motion, the issue is not reviewable on direct appeal from an adverse judgment. Because the issue was not preserved, the court held that it was not open to appellate review.

After resolving the conflict issue presented, the Court turned to the petitioners’ contention that there was fundamental error committed as to them in that they were convicted of grand larceny when the State’s evidence did not support a conviction of grand larceny. Again, the petitioners claimed that the State failed to present sufficient evidence of the value of the items stolen. The court reviewed the record and held that the evidence was insufficient to support a grand larceny conviction. The court reversed for entry of a petit larceny conviction.

Published on: October 9, 2012

Court Hears Conspiracy Case

by Stephen Bilkis

A New York Criminal 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) (drug possession). This court recently affirmed an earlier conviction of defendant for conspiracy to possess and to distribute heroin. On the present appeal a Georgia Heroin 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 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 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 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 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 9, 2012

Defendant Claims his Right to a Speedy Trial was Denied

by Stephen Bilkis

The defendant was convicted after trial of criminally selling a dangerous drug in the third degree and cocaine possession in the fourth degree (drug possession). He had been indicted on June 14, 1971 and his case was moved for trial fifteen months later, on September 11, 1972. In the interim he had been convicted of a drug crime in Puerto Rico and since November 26, 1971 had been serving his sentence in the Atlanta Federal Penitentiary. Prior to the voir dire on the trial herein, he moved orally to dismiss the indictment for failure to be accorded a speedy trial

The motion, having been made prior to the commencement of the trial, was timely. The defendant’s incarceration in Atlanta can serve neither as an explanation for the delay nor as an excuse .

The reason for the motion was that the defendant ‘feels one or more of his witnesses may now be unavailable to him’. The defendant’s counsel explained that a male and a female had been indicted with the defendant; that while the male was available as a witness for the defendant, the female had not appeared in court and that there was a bench warrant out for her. A New York Criminal Lawyer said the court, stating that the male was available as a witness and that the female had disappeared before the defendant had demanded a trial, denied the motion.

Published on: September 7, 2012

Defendant Contends Evidence Should be Supressed

by Stephen Bilkis

On March 22, 1996, the police obtained a search warrant for 2130 East Tremont Avenue, Apartment 7E, in Bronx County. The warrant authorized seizure of cocaine possession and crack-cocaine possession and evidence tending to demonstrate that the premises are utilized for the unlawful possession, packaging and sale of crack-cocaine and cocaine, to wit: scales, plastic bags and other paraphernalia. The warrant was issued 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.

A Bronx Drug Crime Lawyer said that, on the same evening, a detective and several other officers executed the search warrant. Upon entering the apartment the detective saw four individuals, two of whom he recognized as subjects of the investigation. 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 about 20 to 30 minutes after the initial police entry, the apartment “buzzer” rang while the police were completing their search. The officers stationed outside the building informed the detective by radio that a Hispanic male was ringing the downstairs buzzer. The detective instructed them to allow the man to enter the building, and further instructed the officers in the hallway to stay out of sight.

Published on: August 3, 2012

Court Determines if New Sentencing Statute Applies

by Stephen Bilkis

The Facts:

On 15 December 1981, defendant was convicted of several drug crimes (which includes marijuana possession, heroin possession, etc.), viz: Criminal Sale of a Controlled Substance in the First Degree, Conspiracy in the Second Degree and Criminal Use of Drug Paraphernalia in the Second Degree. Defendant was sentenced to various terms of imprisonment.

The Issue:

Published on: July 25, 2012

Defendant Charged with Bank Fraud

by Stephen Bilkis

This case deals with a matter concerning the attorney and counselor at law, Cheddi B. Goberdhan. The petitioner in the matter is the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts. Cheddi B. Goberdhan is the respondent. The case is being heard in the Supreme Court of the State of New York, Appellate Division; Second Judicial Department. A. Gail Prudenti, P.J. , William F. Mastro, Peter B. Skelos, Reinaldo E. Rivera, and Leonard B. Austin, JJ are the judges hearing the case.

Case Background

A New York Criminal Lawyer said the Grievance Committee from the Second, Eleventh, and Thirteenth Judicial Districts has motioned for the name of the respondent to be taken off the roll of attorneys and counselors at law. The reason for this motion is that the respondent was convicted of a felony, which is in violation of Judiciary Law Section 904.