Articles Posted in New York

In this criminal case, defendant was convicted by a jury on three counts of willful attempt to evade or defeat his federal income tax due for the years 1970, 1971 and 1972, in violation of 26 U.S.C. § 7201. He was sentenced to one year imprisonment on each count, the sentences to run concurrently, and a $5,000 fine on each count. A New York Criminal Lawyer said the issues raised by defendant on appeal can be grouped into three categories: (1) government misconduct before the grand jury; (2) Jencks Act material; and (3) introduction of a 16-year-old military conviction for larceny.

The issues in this case are whether the issues raised by the defendant on his appeal that was grouped into three categories have merit.

The Court held that it finds no merit to the claims under the first two headings but concludes that it was prejudicial error to admit the military conviction into evidence. We reverse and remand.

In this case, the Appellant raised on appeal his conviction on charges of conspiracy to commit a felony, to wit: grand larceny; and petit larceny. He was initially charged by information with grand larceny, conspiracy, and several counts of forging and uttering uniform air bills.

A New York Criminal Lawyer said the first information, filed on June 1, 1977, alleged that the offenses occurred between November 30, 1975 and June 14, 1975. The State filed a second information in open court on November 3, 1977, without objection from the defense counsel and with court approval. Thereafter, the appellant moved to dismiss the information on the ground that it had not been filed within the two-year Statute of Limitations. His motion was denied.

The informations alleged that Appellant was operating a kickback scheme with another person who worked for a company that provided air trays and livery service for transporting bodies by plane. A New York Criminal Lawyer said the accomplice entered a nolo plea to similar charges and turned State’s evidence. During the trial, he testified that he made out false air bills with information given to him by Appellant, inflating the shipment costs. After the company paid the bill, the accomplice claimed that he delivered the excess money to appellant either in person or through a jointly held safety deposit box.

In this case Appellant, defendant below, filed this appeal from a final judgment of conviction and a sentence of three years probation entered pursuant to a jury verdict finding him guilty of two counts of grand larceny. Our review of the record reveals that appellee, the prosecution below, did not show, as set forth in the information, that the property at the time it was stolen had a fair market value of $100 or more. Accordingly, a New York Criminal Lawyer said the judgment and sentence entered below are reversed and the cause is remanded with directions to the trial court to enter judgment and sentence on the lesser included offense of petit larceny.

Appellant was charged, by information, with three counts of grand larceny. The trial court granted a directed verdict of acquittal as to one of these counts. The remaining counts charged appellant with unlawfully and feloniously stealing hubcaps, valued at $100 or more, from the lawful custody of its owner. A New York Criminal Lawyer said pursuant to a three day trial, the jury returned a verdict of guilty on these two counts. Thereafter, the trial court entered a final judgment of conviction and a sentence of three years probation from which appellant brings this appeal.

Appellant contends that appellee failed to prove by competent substantial evidence, as to one of the counts, the ownership of the stolen property and, as to both of the counts, that the fair market value of the property was $100 or more at the time it was stolen.

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An accused man appeals his conviction for the offense of robbery with a deadly weapon, urging that the trial court erred in refusing to give requested jury instructions on the lesser included offenses of robbery with a weapon, robbery without a weapon, and petit larceny. A New York Criminal Lawyer said the court agrees with his position, reverse the conviction, and remand the case for new trial.

In declining to give the requested instructions, the trial court explained that there was no evidence to support an instruction on any crime other than that charged. The state argues that the lower court’s decision was justified, as the court was not obliged to instruct on any lesser included offense as to which there is no evidence. What the state and the lower court have apparently overlooked, however, is that in any case in which there is sufficient proof of the greater offense to go to the jury, there is inescapably proof of a lesser offense which is necessarily included within the offense charged. The conclusion is self-evident from a reading of the Florida Supreme Court’s seminal decision on lesser included offenses.

The facts reveal that the trial judge, whose order was there reviewed, fell into the same error as the court below by ruling that there was no proof to support a requested instruction that larceny was a lesser included offense to the charged offense of robbery. A New York Criminal Lawyer said in reversing the conviction, the Supreme Court explained that any lesser offense which is an essential aspect of the major offense is a necessarily included offense because the burden of proof of the major crime cannot be discharged, without proving the lesser crime as an essential link in the chain of evidence. Thus, in order to prove a robbery, the state must necessarily prove a larceny as an essential element of the major offense. This is so because every robbery necessarily includes a larceny.

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By information the appellant was charged in one count with breaking and entering a dwelling with intent to commit a felony, aggravated assault, in violation of § 810.01 Fla.Stat., F.S.A., and in a second count with aggravated assault, in violation of § 784.04 Fla.Stat., F.S.A. a Miami Petit Larceny Lawyer said that, on trial before the court without a jury the defendant was acquitted on the latter charge, and on count one was found guilty of the lesser offense (§ 810.05 F.S.A.) of breaking and entering a dwelling with intent to commit a misdemeanor, to-wit, petit larceny. The defendant appealed from that conviction.

A New York Criminal Lawyer said the husband and his wife owned a residence as tenants by the entireties. They had separated, and he had not resided in the home for more than a year. His wife lived there with their three children. He retained a key to the home. For the purpose of obtaining evidence against his wife, he and the defendant, a private investigator employed by him, entered the home through the front door using his key. While there they placed and secluded an electronic transmitter in the master bedroom, and disassembled the lock to a sliding glass door which separated the bedroom from the outside. Shortly thereafter, on a certain date at 2:20 A.M., the defendant, acting on instructions from him, entered the residence through the unlocked glass door into the bedroom, and secured certain flash photographs of his wife and a man in bed there. It was brought out by testimony of the latter persons that the defendant did not demand or take anything of value from the premises. Their testimony that the defendant had and produced a gun at that time was contradicted.

A New York Criminal Lawyer said that, the trial court concluded the evidence was insufficient to prove aggravated assault, acquitted the defendant of that charge, and did not find him guilty of a lesser included offense thereof. Consistent with acquitting the defendant on the separate charge of aggravated assault, the trial court held that the charge of breaking and entering with intent to commit aggravated assault was not proved, incident to convicting the defendant on the lesser offense of breaking and entering with intent to commit petit larceny.

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In this criminal case, shortly before 10 p.m. on May 16, 1969, the police were summoned by a neighbor to investigate a breaking and entering at the home of the spouses’ victims. The police officers were the first to arrive at the scene. A New York Criminal Lawyer said the first officer positioned himself at the front door while the other officer entered the dwelling through the back door. Upon entering the dining area of the victim’s home the officer Howell saw appellant, informed him that he was under arrest and ordered him to stop. Nevertheless, appellant fled from the house through the front door where he was apprehended by the other officer. Appellant, who was wearing socks on both hands and holding a screwdriver, was handcuffed and searched but no personal property belonging to the spouses was found in his possession.

A Florida Petit Larceny Lawyer said that, the officer continued his search of the house and apprehended defendant in a bedroom. He had in his possession a Masonic ring, watch and suit coat all of which belonged to the husband victim. Also found in the bedroom was a pillowcase which contained a razor, cigarettes and shaving cream.

A New York Criminal Lawyer said that, at the trial the husband victim testified that the ring and watch were Christmas presents and were cherished by him but no monetary value for the watch; ring or suit coat was ever established. Nor was evidence offered on the value of the personalty in the spouses household. The only evidence of the value of any item in the household was the husband victim’s testimony that $70 was missing from his dresser drawer.

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Appellant was charged by an indictment of committing the crime of robbery. The trial court instructed the jury on robbery and on the lesser offense of attempted robbery and, in so instructing advised the jury that it could bring in one of three verdicts: 1) not guilty, 2) guilty of robbery, or 3) guilty of attempted robbery. A New York Criminal Lawyer said the appellant’s trial counsel specifically requested the trial court to instruct the jury on the lesser included offense of assault with intent to commit robbery, aggravated assault, and petit larceny, upon the theory that such offenses are within the dictates of the Supreme Court’s previous decision.

In rejecting the foregoing request, a New York Criminal Lawyer said that, the trial court observed: I find it difficult to believe that a jury could logically and legitimately determine that assault with intent to commit the crime, aggravated assault or petit larceny could in this instance, In view of the proof shown, be considered lesser offenses. Now it is the interpretation of this Court of the Brown Decisions and the Decisions that the Court, of the Supreme Court of Florida, in the Gilford Case expressly overruled those portions of those decisions wherein the Court has mandated to charge on all lesser included offenses, and left it to the point wherein Only when there was proof submitted that would enable the jury to determine guilt of a lesser offense should the Court charge on it.’

The issue in this case is whether the trial court erred in its decision.

Appellant, who was petitioner below in a habeas corpus proceeding, seeks reversal of an order of the trial judge denying the writ and remanding him to the custody of the appellee, Custodian of the Florida State Prison. The point for determination on this appeal is the legality of the sentence of the appellant in view of the apparent inconsistencies between Section 811.301, Florida Statutes, F.S.A. and Section 817.01, Florida Statutes, F.S.A.

A Franklin Criminal Lawyer said that, appellant was informed against in the Circuit Court for Franklin County by an information in two counts, reading in part as follows: Appellant, did then and there designedly by false pretense, and with intent to defraud, obtain from another person property, to-wit: $10.00, $10.00, and $5.00 from a certain individuals by promising to heal their illness and infirmities and then absconding with their money, knowing that his promises to heal were false. Second Count: A New York Criminal Lawyer said the appellant did then and there practice the healing art without first having obtained a certificate or proficiency in the basic sciences, by professing to heal a certain individuals for the sum of $10.00, $10.00 and $5.00.

Upon arraignment, a Franklin Criminal Lawyer said that, appellant pleaded guilty to the offense condemned by the first count and the second count was nolle prosequied. On September 26, 1955, he was sentenced to five years imprisonment in the State Prison under the first count of the information. When he began serving the sentence does not appear from the record. On March 26, 1956, appellant, without benefit of counsel, filed in the Circuit Court for Union County his petition for writ of habeas corpus contending that the information pursuant to which he was convicted was defective and that he had been denied counsel as well as a trial by jury. After hearing the matter, the Circuit Judge on April 14, 1956, found that the questions raised by the petition were not sufficient to justify the issuance of the writ of habeas corpus. A New York Drug Possession Lawyer said that, the Judge thereupon denied the writ and granted to the appellant the right of appeal. Reversal of this order denying the writ is sought by this appeal.

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A New York Criminal Lawyer said in this drug offense case, defendant was found in his apartment with 6¼ grams of heroin about twenty to thirty minutes after a package containing 13 grams of heroin was delivered by mail to his apartment. Customs and postal inspectors had discovered the heroin in the package when it had arrived in the country at San Francisco. The package was mailed from Thailand and addressed to defendant’s residence in Daytona Beach, Florida. The postal authorities arranged a controlled delivery of the package to defendant’s residence.

A New York Criminal Lawyer said that, about twenty to thirty minutes after this controlled delivery had taken place, four officials, one a postal inspector, and another a customs agent, and the other two, Daytona Beach police detectives, entered defendant’s apartment under a valid search warrant. They found defendant in a bedroom with 6¼ grams of heroin on a coffee table in front of him. They conducted a search to find the remaining heroin. During this search, they found thirty packets of heroin, each wrapped in aluminum foil and containing a mixture which included approximately one milligram of heroin, in a drawer of a dresser in a bedroom across the hall from the room where defendant had been found. It was established at trial that these “dime bags” small packets wrapped in aluminum foil containing about one milligram of heroin are commonly used in passing heroin on the streets. The authorities also found some butts of marijuana cigarettes in the same bedroom drawer.

While the authorities were searching the apartment, defendant remarked to them, referring to the thirty “dime bags”, “I bet you didn’t think I could package it up that quick”.

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