New York

Published on: October 1, 2012

Defendant Claims Insufficiency of Evidence

by Stephen Bilkis

In this case, the appellant was tried before the court without a jury and found guilty of the crime of breaking and entering a dwelling with intent to commit a felony, to-wit, grand larceny, and of the crime of grand larceny. A New York Criminal Lawyer said that separate sentences were imposed thereon for imprisonment for a period of three years, with provision for the sentences to be served concurrently.

On appeal therefrom, it was contended that the court erred in denying appellant’s motion for acquittal on the ground of insufficiency of the evidence, and further that it was error to impose more than one sentence.

Upon review of the case, the court found no reversible error therein.

Published on: September 27, 2012

Court Decides if Prior Convictions Can Be Used to Impeach Defendant

by Stephen Bilkis

This case is about an appellant who was adjudicated guilty, after a jury trial, for inciting a riot under Section 870.01(2), Florida Statutes (1981). A New York Criminal Lawyer said the appellant argued that the evidence presented by the prosecution was insufficient to support his conviction. Although the sufficiency of the proof presented a close question, after thorough review, the court held that the State did present a prima facie case and that a judgment of acquittal was not required.

The case however was reversed on the ground of evidentiary rulings as to prior convictions. The question concerns the impeachment of appellant under Section 90.610, Florida Statutes (1981), on the basis of two prior petit larceny convictions. The trial court ruled that these prior petit larceny convictions could be used for impeachment purposes and threatened to hold appellant in contempt if he took the stand and testified that he had not been convicted of a crime. Appellant did testify and on direct examination stated he had been convicted of a crime twice.

The old rules on Evidence provide that a witness was subject to being impeached with evidence of a prior conviction of any crime, excluding violations of a municipal ordinance. Jurisprudence prior to the amendment of the rules established that “a crime is a crime”. A New York Criminal Lawyer said the argument that discrediting crimes must involve moral turpitude was expressly rejected.

Published on: September 21, 2012

Court Listens to Drug Charges

by Stephen Bilkis

Defendant Riley M. was arrested and charged with criminal possession of a controlled substance in the seventh degree (drug possession) (Penal Law sec. 220.03), criminally using drug paraphernalia in the second degree (Penal Law sec. 220.50), loitering in the first degree (Penal Law sec. 240.36), resisting arrest (Penal Law sec. 205.30) and disorderly conduct (Penal Law sec. 240.20). The defendant said that, defendant now moves pursuant to CPL 170.30(1)(a) and 170.35(1)(a) to dismiss the complaint for facial insufficiency on the ground that possession of cocaine residue is not sufficient to sustain a charge of criminal possession of a controlled substance in the seventh degree.

The issue in this case is whether the defendant is entitled to his motion to dismiss on the ground that possession of cocaine residue is not sufficient to sustain a charge of criminal possession of a controlled substance in the seventh degree (drug possession )

Possession of Cocaine Residue

Published on: September 18, 2012

Defendant Contends That Dendants

by Stephen Bilkis

On September 24, 2005, Police Officer Frantz Demorin of the 47th Precinct was on uniformed patrol with his partner, Police Officer Merritt, traveling southbound on Bronx Boulevard in the Bronx. Officer Demorin was driving the patrol car and his partner was seated in the front passenger seat. As he approached the vicinity of 3308 Bronx Boulevard, Officer Demorin observed a parked vehicle with two individuals inside of it. Officer Demorin testified that the neighborhood was a “high prostitution and narcotics” area. Officer Demorin pulled up alongside the vehicle, with the passenger side of the patrol car next to the driver’s side of the vehicle, and asked the occupants what they were doing and whether they lived in the area. Officer Demorin had this conversation with the occupants “through his partner through the other car”. Officer Demorin testified that he did not recall “exactly what the answer was”.

A New York Criminal Lawyer said that, after making this initial approach and inquiry, Officer Demorin and his partner exited their patrol car and approached the vehicle on foot. Officer Demorin testified that they approached the car on foot “just to make a common inquiry”. When asked the nature of this inquiry, Officer Demorin replied, “as to what they were doing in the area, if they lived in the area”. Officer Demorin testified further that he made this inquiry “because of the nature of the area it’s a high prostitution and drug crime prone location”. He added that he was trying to find out “if any illegal activity was afoot”.

Officer Demorin walked around to the passenger side of the vehicle where a female passenger was seated and his partner approached the driver’s side. Officer Demorin testified that from where he was positioned on the passenger side of the vehicle, he was able to observe the driver, subsequently identified as the defendant, make a sudden “downward” gesture with his hand.

Published on: September 18, 2012

Defendant Contends Line of Questioning was Prejudiced

by Stephen Bilkis

A man was arrested and charged with criminal heroin possession and sale sometime in August of 1973. The man stood trial and opted to testify in his own behalf. A New York Criminal Lawyer said he testified that the police officers who arrested him pressured him into becoming a police informant. He also testified that when he refused to be a police informant, the police officers threatened him with bodily harm.

He testified also on direct examination that he had never been convicted of any drug crime in the past. He denied having ever dealt drugs on the street. He also vehemently denied that he ever committed criminal heroin possession and sale as testified to by the police officers when they testified for the People. The district attorney began his cross-examination by asking the accused if he has ever had any criminal conviction at all prior to his arrest. The accused admitted that he was convicted as a youthful offender. The counsel for the accused did not object to the line of questioning that touched on the past criminal convictions of the accused.

The records show that the district attorney during the cross-examination of the accused asked him if he has ever in his life seen heroin. The accused answered affirmatively and asserted that he was a former heroin addict. It was at this time that the district attorney cross-examined the accused on his heroin usage in the past. The lawyer for the accused did not object to the district attorney’s line of questioning. The district attorney proceeded to question him as to the extent of his heroin usage. The accused admitted that he sniffed heroin intermittently until he was arrested. He also admitted that prior to that, he used to smoke marijuana.

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

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 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.