New York

Published on: September 14, 2012

Court Decides Whether to Disbar a Lawyer

by Stephen Bilkis

In October 1993, a lawyer, a member of the New York Bar was arrested at 9pm on a street corner in the Bronx. He was arrested and charged with criminal crack cocaine possession.

In June 1998, the same lawyer was apprehended by police officers at a street corner after he purchased crack cocaine. A New York Criminal Lawyer said he was charged with criminal crack cocaine possession. He was later sentenced to three years’ probation. Also in June 1998, the lawyer was arrested and charged with obstructing governmental administration. He was sentenced to three years’ probation as well. At that time, the lawyer offered a New York police officer a sum of money in exchange for the dropping of the drug crime charged against him.

He was also charged under the Code of Professional Responsibility, a law that regulates the conduct of members of the Bar. He was charged with engaging in conduct detrimental to the administration of justice. He was also charged with engaging in conduct adversely reflecting on his fitness to practice law. Aside from his criminal conviction, being a member of the Bar, he also faced other civil consequences of his arrest and conviction by way of an administrative hearing to determine his fitness to continued membership in the New York Bar.

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

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

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.

Published on: September 9, 2012

Petitioner Requests a Recalculation of his Sentence

by Stephen Bilkis

In 1996, after a jury trial, petitioner was convicted of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree. He was sentenced to concurrent indeterminate terms of 7Â½ to 15 years on each charge. In 1997, petitioner was convicted of manslaughter in the first degree under. Thus, at the time of sentencing on the manslaughter conviction, petitioner was “subject to an undischarged term of imprisonment imposed at a previous time by a court of this state”. A New York Criminal Lawyer said pursuant to the terms of a negotiated plea agreement, petitioner pleaded guilty to the manslaughter charge. Consistent with the discretion afforded by statute to impose either a concurrent or consecutive period of incarceration, the court sentenced petitioner to a term of 7Â½ to 15 years, to be served consecutively with the sentence imposed following his conviction on the unrelated controlled substance charges.

A Bronx Criminal Lawyer said that, the two cases against petitioner were consolidated for appeal. This Court affirmed the manslaughter conviction and reversed the earlier drug conviction. Rather than seek retrial, the People accepted petitioner’s plea of guilty to criminal sale of a controlled substance in the third degree in exchange for a sentence of 7Â½ to 15 years, to be served concurrently with the sentence imposed on the manslaughter conviction. Supreme Court sentenced petitioner in accordance with the plea agreement in October 2000 and issued a commitment order.

A New York Criminal Lawyer said that, in response to his inquiry regarding eligibility for parole, the Department of Correctional Services informed petitioner that his aggregated sentence was 12 to 24 years based on two terms of imprisonment that are to be served consecutively. In a letter to counsel, the Department took the position that pursuant to the decision of the Appellate Division, Fourth Department, in Matter of Muntaqim v Herbert, the “relationship between such sentences had to remain consecutive. Thus, the Court that resentenced Mr. Murray on indictment #5174/94 could not change it from consecutive to concurrent.”

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 8, 2012

Defendant Questions Sufficiency of Evidence

by Stephen Bilkis

An undercover police officer went to buy drugs. He stayed at a street corner waiting for someone to approach him. The accused approached the police officer and they talked for a while. The accused asked the police officer if he was looking to score some crack. The police officer said that he was looking for crack. A New York Criminal Lawyer said the accused told the police officer that he too was looking to buy some crack. They waited a bit more where they were but no one approached them.

The two decided to take a walk to a busier street corner. As they waited there another man (the co-accused) came up to them and asked them if they were looking for anything in particular. When the undercover police officer and the accused said they were, the co-accused gave them an address where they could go. The co-accused told the two men to wait inside the building.

The undercover police officer and the accused then walked all the way to the address given by the co-accused and when they got there, they went inside the building and waited. The co-accused later appeared and went up one flight of stairs, down the hall into the rear of the building.

Published on: September 8, 2012

Court Decides if Defendant Should Receive an Enhanced Sentence

by Stephen Bilkis

This involves a drug crime case where the Court denied the People’s appeal to consider a defendant’s perjury at trial in enhancing his service of sentence.

Defendant was convicted after a jury trial, at which he testified, of Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Fourth Degree (drug possession). In response to the defendant’s pre-sentence memorandum requesting leniency in sentencing, the District Attorney’s Office, citing United States v. Dunnigan, 507 U.S. —-, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993), contends that the defendant should receive an “enhanced sentence”, i.e., a higher sentence than the Court would otherwise impose based upon his alleged perjury at trial. The People claim this perjury is established by the contradictions between defendant’s trial testimony concerning his cocaine possession and his statements about his addictions to the social workers of the Legal Aid Society in the pre-sentence memorandum submitted to the Court on his behalf.

The People argue that this falsehood, coupled with defendant’s false testimony claiming innocence of the charges for which he stood trial and was convicted, constitute willful and materially false statements, i.e., perjury, that may be considered by this Court in assessing the defendant’s history and character to determine an appropriate sentence. A New York Criminal Lawyer said defense counsel contends that this Court should find such consideration irrelevant. Defense concedes that the majority of reported state jurisdictions permit consideration of a defendant’s trial perjury as a factor in enhancing sentence on the ground that it evidences lack of potential for rehabilitation.