New York

Published on: June 24, 2012

Defendant Contends Elements of Rape Crime Not Met

by Stephen Bilkis

A man filed a motion for him to file a late notice of explanation. The man’s counsel has established good reason for late filing of the notice which is attached to the moving papers. As explained on the counsel’s letter, a New York Criminal Lawyer said the alleged criminal acts occurred more than two years ago and making the notice of explanation was difficult. The state of New York noted on the record that they do not oppose the request and the notice will be deemed timely and is directed to be filed.

The second and third branches of the man’s motion concern the counts one and two of the accusation. The count one charged the man with predatory sexual assault against a child allegedly committed when the man was more than 18 years old at which he allegedly committed rape in the first degree against a female who was less than 13 years old. The count two charges was the same crime on the same legal theory against the same complainant. A New York Criminal Lawyer said the counts three and four charges were a criminal sexual act in the first degree with the same victim on the same dates as alleged in counts one and two. The count five charges endangering the welfare of a child encompassing all of the conduct charged in count one through four inclusive.

The man’s counsel first argues that the court should reduce the charge in counts one and two with rape in the first degree with the rule of lenity. The counsel notes that the elements of predatory sexual assault against a child are identical to those of rape in the first degree as charged. Counsel said based on records, the predatory sexual assault against a child is a class A-II felony with a mandatory minimum sentence of 10 years to life and a maximum of 25 years to life. By contrast, rape in the first degree is a class B felony, with a mandatory determinate sentence having a minimum of five years and a maximum of 25 years, followed by at least five years of post-release supervision. The two crimes also have different plea bargain restrictions with respect to the offense against a child charge. The plea must be at least to a class C violent felony whereas the man may plead guilty to a class D violent felony in satisfaction of a charge of rape in the first degree.

Published on: June 23, 2012

Can the Agent of a Purchaser of Narcotics be Convicted of Drug Sale?

by Stephen Bilkis

This is the case wherein the court reiterated its New York rule that one who acts solely as the agent of a purchaser of narcotics cannot be convicted of the crime of criminal sale of a controlled substance.

A New York Criminal Lawyer said that an undercover police officer befriended the defendant in various bars. The police officer, disguising as a drug user, thereafter mentioned to the defendant that he was interested to buy ecstacy. The defendant indicated that he might be of assistance in doing so and invited the undercover to call him whenever needed. In the course of their meeting in a bar, the police officer advised the defendant of his intention to buy cocaine or heroin. The defendant estimated the cost of the quantity of approximately four ounces of cocaine which was between three and four thousand dollars.

After some days, the defendant and the police officer proceeded in a bar in Manhattan. The defendant entered the premises alone, presumably to meet the man who was the seller. The defendant reported to the police officer that the price of the narcotics would be $4,000. The police officer paid the amount and the defendant re-entered the bar to give the payment to the seller. The two proceeded to a discotheque where the actual delivery of the drugs took place.

Published on: June 23, 2012

Defendant Convicted Several Times of Drug Crimes

by Stephen Bilkis

The Defendant in this case was arrested for a drug possession crime which involves selling and possessing prohibited substance in the third degree on two different occasions. He was convicted on both instances but was given parole thereafter.

While on parole, defendant was once again arrested for selling prohibited drugs which is also a direct infraction covered under criminal law. This time he pleaded guilty to Attempted Criminal Sale of a Controlled Substance in the third degree, a class C felony. He apparently failed to appear in court for sentencing. Hence, a bench warrant for his appearance was issued. Due to his prolonged absence, his warrant was served more than two (2) years later. Upon service of warrant, the court convicted the defendant and sentenced him to be imprisoned for three (3) to seven (7) years.

On his own, the defendant moved for resentencing which is an action, given the requirements of law, granted under the Drug Law Reform Act (DLRA). Defendant’s motion was subsequently denied and the court held that the 2009 DLRA did not authorize the resentencing of Class C felony drug offenders.

Published on: June 23, 2012

Court Looks at Intent in Criminal Assault Case

by Stephen Bilkis

Sometimes, the cases that reach the Supreme Court on appeal represent a question of law that is similar among several cases. When this happens, the cases are grouped into one with several cases included. One such composite case involved a defendant who was indicted for attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree. A New York Criminal Lawyer said he was arrested for shooting a man with whom he had gotten into a disagreement. They had known each other for many years before the disagreement turned violent. The only witness to the altercation was the victim himself. The victim had originally told the police that he did not know who had shot him. It was not until later that he identified his acquaintance as the perpetrator of the assault. The defense attorney for the defendant attempted to have expert testimony presented in court on the inadequacies of eyewitness identifications. The trial court denied his request.

The judge instructed the jury that the defendant could only be convicted of the charge of first degree assault if he caused serious physical injury to the man by means of a deadly weapon with the intent to cause serious physical injury. They were charged that to convict him of second degree weapon possession, they had to prove that the defendant possessed the loaded gun, that he possessed it knowingly, that the gun was operable, and that he had the intent to use it with unlawful intent against the man who was shot. The jury acquitted the defendant of attempted murder and second degree possession of a weapon. He was convicted of first degree assault. A New York Criminal Lawyer said the defense attorney objected to the verdict in court because he maintains that the fact that the defendant was acquitted on the weapon possession count that he could not be convicted for the assault with that weapon.

The trial court rejected the argument of the defense because they claimed that it was not contradictory for the defendant to have possessed the weapon without an intent to use it illegally. He had possession of the weapon without intent to assault anyone earlier in the day before he decided to use it to shoot the victim. The Appellate court agreed on the appeal and upheld the conviction.

Published on: June 23, 2012

Court Decides Outcome of Repeated Probation Violations

by Stephen Bilkis

Many people view juvenile delinquency as a problem that the child will outgrow. Unfortunately, violence among teenagers has become extreme with the addition of gangs and gang violence in the United States. These juveniles are often on the road to becoming career criminals no matter what actions that the courts take to attempt to rehabilitate them. One case that demonstrates this fact was decided on March 14, 2012. This case involved a young man who was adjudicated as a juvenile and placed under the supervision of the New York City Department of Probation. A New York Drug Crime Lawyer said that the young man was sent to an alternative placement program for juvenile delinquents. While in the placement program, the young man was arrested numerous times for extremely violent offenses. Because, he was unable to stop committing violent offenses, the Family Court probation that he was serving was revoked and he was held on Riker’s Island to await the results of his criminal trials in several different counties that were filed while he was on probation.

He was arrested in Queens County and indicted for Murder in the second degree, murder as a hate crime, felony murder, manslaughter as a hate crime, manslaughter in the second degree, robbery in the first and second degree and robbery as a hate crime. A New York Drug Possesson Lawyer was charged in gang assault in the first degree and hate crime assaults in the first degree. He was charged for several other hate crimes and weapons offenses.

He was arrested and indicted in Bronx County for robbery in the first , second, and third degrees. He was indicted for numerous gang crimes of assault, as well as grand larceny and menacing. He was also charged with weapons and stolen property offenses. In Kings county, he was indicted for attempted robbery and assaults as well as petit larceny.

Published on: June 21, 2012

Court Decides if Confession of Minor is Admissible

by Stephen Bilkis

A peace officer (not a police officer) was walking along the corner of 14th Street and 31st Avenue at around 6:30 p.m. on July 19, 1963. He saw a 15 year old boy standing on that street corner. A New York Drug Crime Lawyer said he saw another person approach the 15-year old boy and after briefly talking, the person who approached him put a dollar bill on a public mailbox. After that, the15-year old boy passed something from his hand to the man’s hand. The man then turned and left the 15-year old boy.

The peace officer then observed the 15-year old boy walk around the corner. He saw the 15-year old boy shuffling unsteadily until he went inside a grocery store. The peace officer followed him inside the grocery store and noted that the child looked dazed. His eyes were red and droopy like he was so sleepy. The peace officer then approached the boy and asked him what the matter was with him.

The boy answered that he had taken drugs. The peace officer then identified himself to the boy and asked him if he could frisk him. The boy acquiesced. The peace officer then frisked the boy and found hard objects in his right front pants pocket. The peace officer then asked the boy to remove the contents of his pockets.

Published on: June 19, 2012

Defendant Contends Violation of Drug Reform Act

by Stephen Bilkis

The Facts:

On 21 March 2002, defendant was sentenced in Michigan to a two-year probation following his plea of guilty to attempted home invasion in the first degree under Criminal Law.

A New York Criminal Lawyer said that on 22 August 2003, defendant was charged in Bronx County with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and seventh degrees, respectively.

Published on: June 19, 2012

Defendant Claims He Did Not Play an Active Role in Drug Transaction

by Stephen Bilkis

A team of police officers conducted a buy and bust narcotics operation. The undercover officer carried bills which had been photostatted and drove to the location where twelve people were standing near the area. The officer called out from his automobile asking if anyone had dimes. A New York Criminal Lawyer said based on records, the word dimes mean a $10.00 bag of heroin. The man then came over to the auto and asked the officer what he wanted. The officer then replied again the word dimes. Then, another man standing a few feet behind the first man asked the officer if he wanted Santa Claus. The officer being unfamiliar with the term ignored the other man. The officer again told the first man that he wanted dimes. The man asked how many and the officer replied to give him two. The man called over his shoulder the word duayduay and another man then walked to a tree about fifteen feet from the auto. He bent down, reached among the cobblestones at the base of the tree and removed some glassine envelopes. The first man told the officer to give him the money and he must give him one extra dollar. The officer gave the first man a ten, a five and five singles. The man then counted it and demanded the officer for another dollar. The officer gave him a five dollar bill and the man returned four singles. As the other man was returning to the car, another person walked over to the tree and the man yelled at him to get away. The other man then walked to the car and handed the officer the two glassine envelopes. The other man told the officer that he should get out of the area fast because it’s hot. The officer then left the area and made a transmission to his back-up team to arrest the two men. The police then recovered narcotics from the cobblestones at the base of the tree. The other man was found to have twenty dollars as recorded bills in his possession while only a single dollar bill was found on the first man.

The issue brought into the court was the argument whether the first man was an agent of the purchaser and whether the trial court’s charge on the defense of agency was damaging to the first man so as to require reversal of his conviction for criminal sale of a controlled substance in the third degree. A New York Criminal Lawyer said the court then concluded that the first man was not an agent of the purchaser but rather played an active role as seller of the contraband.

As the court admitted the question of the first man’s status in the illegal transaction was a proper question for the jury and one in which they accurately determined that the first man was a seller of drugs. Based on records, it is important to remember that when the undercover officer drove to the prearranged locale, the man was not the only individual on the street, but was part of a group of twelve men. After the undercover officer asked of the congregation if anyone had dimes, the man then voluntarily emerged from the crowd and inquired as to what the officer desired and in what quantity. The second man approached and handed the narcotics directly to the officer. A few minutes later, the first and second man was arrested at which the second man had in his possession the twenty dollars of marked money while the first man was in possession of the additional dollar.

Published on: June 19, 2012

Defendant Contends Burden of Proof was Not Met

by Stephen Bilkis

A girl was convicted of criminal sale of a controlled substance in the first degree, for which she was sentenced to a prison term of eight years to life. She was imprisoned and already served her three years term.

The girl contends that the evidence at her trial failed to demonstrate beyond a reasonable doubt that she was the woman who sold an undercover officer 214 vials containing cocaine. However, New York Drug Crime Lawyer said there was ample evidence that the officer had sufficient opportunity during the sale to observe the girl closely enough to permit a reliable identification at the trial, and the jury was entitled to credit the identification. Further, a New York the girl also contends that the New York state failed to demonstrate that she sold two ounces or more of cocaine that was contested by the testimony of the chemist who testified for the New York state as to the procedure he employed in weighing the contents of the vials. It was for the jury to decide whether the expert had adequately analyzed and weighed the contents and whether his opinion was entitled to be credited.

The New York state cross-appealed, however, contending that the court illegally imposed a sentence which was less than the legal minimum of fifteen years to life. The girl, at age seventeen was properly convicted for selling drugs. A New York Drug Possession Lawyer said he had already served three years of the original sentence of eight years to life. She didn’t murder anyone. In fact, she has not ever been convicted of any other crime than the said drug crime.

Published on: June 18, 2012

Court Determines if Unlawful Surveillnce is a Sex Crime

by Stephen Bilkis

A 55 year old man, after violating a criminal law, has been placed under the Strict and Intensive Supervision and Treatment (SIST) under a sex offender civil management proceeding. Subsequently, the State filed for a petition to revoke the respondent SIST’s placement and requested the court for the respondent to be transferred under a Secure Treatment Facility under Article 10 of the Mental Health Law. The court denied the petition.

A New York Criminal Lawyer said the respondent acknowledged that he was a drug user from 1980 up to 1993. He admitted having marijuana possession and used it during his teenage years. His addiction relating to drug crime led him to commit several offences. In 1994, the court has found him guilty of Attempted Rape in the First Degree, Sexual Abuse in the First Degree and Burglary in the First Degree for entering an apartment of a lady and while holding a knife, placed her hand on his penis. Prior to this incident, he was a known exhibitionist masturbating in public places while his penis was partially exposed to public view. He admitted that he suffered from a Mental Health Abnormality thus the State entered an agreement for him to be placed and monitored under the SIST.

On August 11, 2010, the respondent placed his cellphone camera under the skirt of a woman in Union Square Park with the intention of photographing the victim. A New York Criminal Lawyer said the victim upon its discovery threw the cell phone and scuffled with the respondent. In course of the incident, the victim suffered physical injuries. In addition to this incident, a parole officer mandated to supervise him during the program testified that the respondent violated the terms of the agreement by masturbating in a public place. The respondent admitted to masturbating inside the stall of a public restroom and a library.