New York

Published on: April 14, 2012

Defendant Contends Police Did Not Have Reasonable Suspicion for Search

by Stephen Bilkis

A New York Drug Possession Lawyer said an accused man appealed from a summary judgment of the Supreme Court. He was convicted for violating criminal law through committing drug crimes. The accused man was sentenced for his alleged criminal sale of a controlled substance in the third degree, crack possession in the third degree, and criminal possession of a controlled substance in the fourth degree, upon a jury verdict, and imposing sentence. A New York Drug Crime Lawyer said after hearing, the appeal brings up for review the denial of that branch of the accused man’s compilation of motion which was to suppress certain physical evidence.

The accused man was observed by the undercover police officers selling crack cocaine to the passengers of a BMW automobile during a drug crime surveillance operation. The BMW was stopped nearby and the passengers were arrested for a vial of crack cocaine possession that was recovered from the floor of the car. When the back-up officers arrived at the scene of the sale to make the arrests, they approached the accused man because he matched the description of the drug seller broadcast over the police radio. A New York Drug Possession Lawyer said as the police officers approached, the accused man fled, dropping a plastic bag containing 100 vials of crack cocaine during the pursuit. On appeal, the accused man argues that the back-up officers did not possess a reasonable suspicion that he had committed a crime, allowing them to detain or pursue him and, therefore, the crack cocaine he discarded during the chase should have been suppressed as the fruit of an unlawful detention. A said the accused man makes the same argument as to the crack cocaine possession that was found on the floor of the BMW automobile.

A Nassau Criminal Lawyer said because the accused man did not move to suppress the crack cocaine found in the BMW automobile, the issue has not been preserved for appellate review. In any event, the accused man failed to articulate the requisite privacy interest to warrant a finding that he had standing to challenge the admission of the evidence and, as the discovery and seizure of the crack cocaine in the BMW occurred prior to the police’s attempted detention of the accused man, it could not have been a fruit of that detention. With regard to the crack cocaine discarded during the flight, the court finds that the hearing court, which saw and heard the witnesses, correctly denied suppression.

Published on: April 14, 2012

Court Discusses Role of Counsel at Grand Jury Proceeding

by Stephen Bilkis

A man indicted for drug crimes such as cocaine possession with intent to sell, denied that he had sold cocaine, but testified to his crack possession of three vials for his own use. A police officer testified that he observed the accused man receive money from an unidentified woman and then drop a vial of crack cocaine, which the woman picked up from the ground. A New York Criminal Lawyer said the officer further testified that he arrested the accused man within five minutes, finding four dollars and crack possession.

The accused man testified that he received the vials from three guys whom he knew. When asked to name the three men, he inquired whether he could speak to his lawyer. He was permitted to do so and replied that the guys are not really involved in what he was accused of. A New York Criminal Lawyer said when the question was repeated, the accused man answered without further consulting his attorney. Presumably in an attempt to establish that the accused man’s cocaine possession with intent to sell, the assistant district attorney asked him how he obtained the money. The man testified that he received welfare, had saved some three hundred dollars while in a program of work release from State prison where he had been until three months beforehand, and also received money from his family. At one point in the accused man’s testimony, the assistant district attorney inquired whether the money he spent to go to movies was welfare money.

A New York Drug Possession Lawyer said the assistant district attorney reviewed the accused man’s prior criminal law violations that include four felony and seven misdemeanor convictions. In detail the convictions include four robberies, one invalid use of a credit card, a fare beat, a trespass, and criminal possession of controlled substances. The assistant district attorney repeatedly emphasized the robbery convictions. The assistant district attorney then asked the accused man to tell the grand jury what happened on the occasion of his arrest for marijuana possession. The accused man explained that he was arrested when he took a bag of marijuana out of his pocket to give to a friend whom he owed money. The assistant district attorney finally asked him to tell the grand jury what he had been arrested for on the occasion in 1990 when he pled guilty to criminal possession of a controlled substance.

Published on: April 13, 2012

Defendant Sold Drugs to Undercover Officer

by Stephen Bilkis

A man appealed from a decision of the Supreme Court from convicting him drug possession and criminal sale of a controlled substance in the third degree upon a jury decision, and imposing a sentence. A revised decision of the same court revoked a sentence of probation previously imposed by the same court upon finding that he had violated a condition and imposing a sentence of imprisonment upon his previous conviction of attempted criminal sale of a controlled substance in the third degree.

The accused man evidently sold a packet of cocaine to an undercover police officer. The undercover officer called the description of the seller to his backup team however the police were unable to locate the seller at that time. After three days, while observing the area from a rooftop, the undercover officer saw the man walking down the street. He called his backup team, and the man was arrested in a nearby restaurant. The undercover officer subsequently identified the man as the person of cocaine possession and sold him the controlled substance. No drugs or prerecorded buy money were found on the accused man. At the trial, the man’s wife testified that he was with her in their apartment the entire evening of the date of the transaction.

On appeal, the accused man contends that the questioning of his alibi witness and comments on summation deprived him of a fair proceeding. During the questioning of the man’s wife, the prosecutor deliberately bring forth that the man was involved in a drug treatment program at the time of his arrest. The court erred in permitting such questioning because the testimony would have no other purpose than to show a tendency to commit violation of the criminal law being charged. The information was not relevant to the elements of the drug crime charged or to the man’s alibi defense.

Published on: April 12, 2012

Defendant Contends he is Eligible for Judicial Diversion Program

by Stephen Bilkis

A man was arrested during the execution of a search warrant in his reported residence. The search warrant was based in part upon an undercover police officer’s sworn allegations that on 13 separate occasions the man, while acting in concert with co-accused sold cocaine and heroin. A New York Criminal Lawyer said the accusation charges the man and his companion, with felony conspiracy for cocaine and heroin and conspiring to commit Criminal Sale of Controlled Substance.

The Criminal Procedure Law defines those accused persons who are eligible for Judicial Diversion as ones charged with certain Class B, C, D, and E felony drug offenses, or those charged with specified nonviolent offenses as long as they do not have a disqualifying condition listed in the law. If the District Attorney consents, a non-eligible accused will be deemed eligible. The list of eligible crimes is specific and does not include every nonviolent felony.

Robbery in the Third Degree and felony DWI, both nonviolent offenses, are not specified eligible crimes. Disqualifying conditions include convictions within the past ten years for felony or a violent felony; those who have a prior second violent felony or persistent felony offender adjudication; and those who are presently charged with certain violent felony offenses. Prior adjudications for disqualifying crimes may also be considered by the court in determining eligibility.

Published on: April 12, 2012

Domestic Violence Defendant Contends use of Medical Records Inadmissable as Evidence

by Stephen Bilkis

A woman had a boyfriend since she was 14 years old until she reached the age of 20. They broke up and went their separate ways living separate lives. Years later, the boyfriend and the woman met up again. The boyfriend did not have a place to live. So for old time’s sake, the woman allowed her old boyfriend to stay in the spare bedroom in her apartment.

The old boyfriend paid rent to the woman. A New York Criminal Lawyer said the woman saved up the money he had been paying as rent and she planned to give it back to him when he has finally found a suitable place to live.

During the course of their living arrangement, the old boyfriend needed to break his five dollar bill into quarters so that he can do his laundry at the laundromat. He took five dollars in quarters from the coin purse of the woman and put in a five dollar bill. Later, he told the woman what he had done. The woman got upset because she suspected that her old boyfriend was going through her personal belongings.

Published on: April 12, 2012

Defendant Brings Motion to Supress Physical Evidence in Drug Possession Case

by Stephen Bilkis

A man appealed from the order of the Supreme Court, which after a hearing granted the man’s set of motion to suppress physical evidence.

A New York Drug Crime Lawyer said the relevant facts brought forward at the suppression proceedings claims that the housing police officer saw a man and another male making an exchange of money for an unknown substance while patrolling in a radio motor patrol vehicle in the vicinity of a playground known as a location for drug crime activity.

The police officer over the course of the previous year and one-half had made 10 to 15 arrests involving narcotics. The officer continued to observe the man for another three to five minutes as he spoke with two or three other males. The officer noticed that the man was continually grabbing a bulge in his left side of his jacket. The officer did not otherwise describe the bulge. The officer called for assistance and then approached the man stating he wanted to speak to him. Apparently, the man immediately fled. The officer however chased the man on foot while his partner followed in a patrol vehicle. After about three blocks, the officer managed to stop the man, whereupon the man reached into his left jacket pocket where the officer had observed the bulge. The officer drew his service revolver and ordered the man to remove his hand from his pocket and put his hands against a wall. A New York Criminal Lawyer said a search to the man produced a loaded .38 caliber revolver and eight vials of crack cocaine.

Published on: April 11, 2012

Court Prohibits Sex Offender From Seeing Wife as a Condition of Release

by Stephen Bilkis

In 1999, petitioner was arrested for rape in the first degree and thereafter convicted, upon his plea of guilty, of sexual abuse in the first degree. The victim, who was his girlfriend at the time and is a petitioner in this proceeding, later married petitioner while he was serving a subsequent prison term in connection with a 2004 conviction of burglary in the second degree. A New York Criminal Lawyer said that the petitioners participated in Family Reunion Program visits three times between October 2006 and October 2007.

In November 2008, petitioner appeared before the Board of Parole, which issued a decision setting the conditions for his anticipated release from prison. In light of the sex crimes committed by petitioner against his wife, as well as evidence of a history of domestic violence between the two, the Board imposed several conditions, including the requirement that petitioner refrain from “associating in any way or communicating by any means with his wife without the permission of” his parole officer.

Petitioners requested the removal of the aforesaid special condition with the Division of Parole but were, thereafter, denied. Hence, petitioners commenced the instant proceeding challenging the condition.

Published on: April 11, 2012

Defendant Charged with Marijuana Possession

by Stephen Bilkis

Recently, a good deal of attention has been given to the legalization or decriminalization of marijuana. Some states have legalized medicinal marijuana use. Some states have decriminalized the private use or possession of less than one ounce. In New York City, it is still illegal to use, possess, or purchase marijuana. While drug possession is still a crime, other less obvious issues surrounding marijuana are being played out in courts all over the United States.

A New York Criminal Lawyer says that people believe that is they are good parents and take good care of their children that no one can take them away. What they do not realize is that sometimes, even good parents are scrutinized by a judicial system that has the power to remove their children from them. This is a terrifying situation. No one wants to believe that the state would come in and take away their children. That is something that happens to other people, bad people, not to the average parent. That image of people who have to fight the system to keep their children is not accurate. Sometimes, there are people who are lousy parents. People can be cruel and people can be clueless when it comes to the welfare of their children. The laws of the state of New York clearly detail that if a parent misuses alcohol or drugs to the extent that it places their children in in actual or imminent danger of impairment to the physical, mental, or emotional condition of the child. The Family Court Act § 1046 also states that there must be a showing of a threshold of serious and ongoing substance abuse. The object of this law is to protect children from serious harm or potential harm. It was not designed to punish parents for behaving in an undesirable manner.

It is possible, that a parent who uses marijuana only once can have their children removed. A New York Criminal Lawyer said it seems unconscionable that the state would take away a person’s children for testing positive for marijuana on one occasion, but it has happened. In fact, one such case was decided in Kings County Family Court in Kings County, New York on January 26, 2012. The incident surrounded the petition from the Administration for Children’s Services to find a mother guilty of child neglect because on the date of her child’s birth, she and the child tested positive for marijuana. The toxicology report was not specific as to when the marijuana had been consumed, if the mother had endangered her child by consuming it, or if the mother had even become intoxicated at the time that the drug entered her body. Interestingly enough, this case brings up the question of what would happen if the drug had entered the mother’s body through second hand smoke. For instance, the mother was passing through a closed in area where other people were smoking marijuana. It could conceivably enter her body in that fashion. She may or may not feel any effects of the drug, but she would probably still test positive on a toxicology report for the drug. That question will have to be answered in a different court case.

Published on: March 7, 2012

DWI Defendant Contends Mistaken Identity

by Stephen Bilkis

A man was stopped at the street for failing to wear a seat belt and operating a vehicle with a cracked front windshield. Upon approaching the vehicle, the police officer noticed that the driver have a glassy eyes. The driver responded to the questions of the police officer with a slurred speech and an odor of alcohol emanated from him. After the man failed the standard field sobriety tests, the police arrested the driver for DWI.

A New York Criminal Lawyer said charges against the driver took place and the bail was set and posted. Subsequently, the man came forward and claimed that he did not drive the vehicle which was stopped by the police officer. The man also claimed that his brother used his license and identity. The man submits an affidavit which indicates that he learned of his brother’s arrest when tickets turned up in the man’s mailbox a couple of days after the arrest. The brother of the man called him a couple of days later according to the affidavit submitted. The brother of the man also advised him that he used the license and was arrested for DWI. While no evidence of identity is offered in support of the motion to dismiss the man, the jury concedes that the man did not operate the vehicle and that his brother did. The acknowledgment by the prosecution of the identity of the driver followed initial findings of the present motion. The initial findings ordered a trial to determine that the man did not operate the vehicle in question and was not arrested due to ambiguities in the submitted papers. The prosecution accepted the point rather than proceed to trial. The decision on the merits of the legal action is rendered.

The overlap of the naming of the man as the accused while charging the person of the man’s brother with violating Vehicle and Traffic Law makes the man an wronged person whose privileges to legally operate a motor vehicle have been suspended. The man therefore has the right to challenge the prosecution with his name, his driver’s license and his identity. A New York Criminal Lawyer said that without the right to come forward and reveal the false use of an identity, the man is plagued with the misdemeanor and with potential effects of a conviction. Prosecuting the brother of the man essentially leaves the brother to invest only his time while the man receives the penalties accruing by fines, suspension and revocation of his license.

Published on: March 5, 2012

Constitutionality of DWI Check Points Challeged

by Stephen Bilkis

A vehicle was stopped at a State Police sobriety checkpoint. After allegedly displaying certain outward sign of intoxication and failing four out of five field sobriety tests, the accused was asked to give a breath sample which resulted in a reading of a .13% blood alcohol content level. The accused challenges the constitutionality of the checkpoint stop on the grounds that the State Police failed to follow their own self-established written guidelines.

A New York Criminal Lawyer said that in addition to establishing a seemingly strict protocol for the selection of sites, scheduling, briefing, setup, system of stops and interview procedures, the written guidelines of the State Police call for the making of certain records and reports before, during and after the date of the checkpoint. When a sobriety checkpoint is first scheduled, a DWI Program Notification message is supposed to be transmitted to Assistant Deputy Superintendent using a prescribed format. The memorandum is essentially a list of particulars pertaining to the planned checkpoint, including time and location, enforcement personnel and system of stop of every vehicle, every third vehicle, and so on. During the checkpoint, the DWI Investigative Note Card should be used to record pertinent impairment information including the officer’s observations, the motorist’s responses to specific questions and the specific cues, or signs of impairment observed during field sobriety tests. No later than two business days following completion of the checkpoint, a DWI Program Activity Record is required to be received at a Division Traffic Services. The record appears to be a data collection tool containing useful post-checkpoint information such as the number of vehicles passing through the checkpoint, the number of vehicles stopped and the number of motorists arrested for DUI and DWI.

While the guidelines do not specifically mandate the use of the DWI Investigative Note Card, the guidelines speak in more absolute terms about the DWI Program Notification and DWI Program Activity Record. A New York Criminal Lawyer said the guidelines provide that it is imperative that the reports be completed in a timely and accurate manner. The documents are further described as legal records that are often referenced in both criminal and civil proceedings. The parties’ submissions agree that none of the above-described documents was ever prepared, let alone transmitted to the appropriate official or division of the State Police. Thus, the stage is set for the court to consider the legal consequences of an admitted failure to strictly or substantially observe sobriety checkpoint guidelines.