New York

Published on: January 21, 2013

Defendant Contends Court Erred in Imposing Consecutive Sentences

by Stephen Bilkis

An appeal was filed by the defendant who was convicted with the crimes of murder and criminal possession of a weapon. He alleged that the court erred in its decision to impose consecutive sentences for the indictments he committed claiming that the accused acted with a singular intent.

The Supreme Court, holding the recent decisions of the Court of Appeals, the determining factor to review the legality of consecutive sentences is “whether separate acts have been committed with the requisite criminal intent.” Consequently, the Court ruled that there was no overlap of the statutory elements of the crimes committed by the appellant, thus, affirming the lawful imposition of consecutive sentences.

A New York Criminal Lawyer said there were two resident gangs at Manhattan who had several altercations among its gang members. One group was composed of the defendant, his sibling and a friend while the other group was a street gang, whose two members were the victims in a shooting incident that caused filing of the felony case against the appellant. Several hours prior to the shooting confrontation, the two groups had encounters and thereafter physical altercations commenced among its gang members. One of the witnesses testified that she saw a gun being carried by the accused at that time of the altercation. After the lapse of a few hours, the defendant moved toward the victim, who was accompanied by other gang members. The group of the victim walked away from the offender to avoid any untoward incident. However, the defendant then took his gun from his shorts and chased down the victim and shot the two victims who died of gunshot wounds.

Published on: January 21, 2013

Court Discusses Dual Sovereignties Doctrine

by Stephen Bilkis

In April, 1973, as a result of a joint major Federal-State narcotics investigation, an indictment was filed against defendants #1, 2 &3, along with 10 other large-scale heroin merchants, for conspiracy to violate Federal drug laws. To support the conspiracy count, covering a period from May, 1971 until the filing of the indictment, 10 particular incidents, including meetings and drug deliveries, were specified as overt acts. A number of substantive drug crimes of heroin possession were also charged.

A New York Criminal Lawyer said that, the instant appeals arise out of a separate concurrent State prosecution in which the three defendants were charged with sale and heroin possession of dangerous drugs. The indictment states that on each of January 8, 12, and 22, 1973, defendants #1,2 &3 possessed and sold over 16 ounces of heroin. These sales had neither been specified as overt acts of the Federal conspiracy nor had they been the subject of the substantive counts in that indictment.

The Federal charges were disposed of first. Defendants 1 & 3 pleaded guilty, among other counts, to conspiracy. Defendant #2,, on the other hand, went to trial and was found guilty on all counts charged. The evidence at that trial although not mentioned in the indictment included testimony concerning the three January drug sales that are the subject of the State prosecution. All three defendants received substantial Federal sentences.

Published on: January 20, 2013

Mental Health Facility Refuses to Admit Mentally Ill Defendant After Acquitted from Crime

by Stephen Bilkis

The director of mental health division refused to admit the petitioner who was acquitted from her criminal charges for petit larceny by reason of insanity. The district court rendered a commitment order of the insane person at a mental health facility of the Florida state. However, the director refused to admit the petitioner raising the issue of danger that would be cause by the accused towards individuals she may be in contact with. The judge sought to show cause from the medical director before the court for failure to follow the commitment order it issued.

In response, a motion to dismiss was filed by the director. A New York Criminal Lawyer said he alleged that the criminal cannot be committed in the mental health facility unless she is civilly committed pursuant to the provisions of the law. The court, on the other hand, averred that the acquitted felon of petit larceny cannot be discharged since she is manifestly dangerous to the peace and safety of the people that she may be in contact with, which warrants her admission to a mental health facility instead. The refusal of the director to admit the petitioner resulted to the imprisonment of the latter at a detention center that caused danger to herself and others.

The Court found that the provisions of the statute pertaining to non-admittance of the acquitted defendant of petit larceny by reason of insanity were unconstitutional and is considered ineffective and inapplicable against the petitioner. It can be established that the due to the insanity of the accused her discharge or release cannot be warranted since she is a danger to herself and others, thus, admission to a mental health facility was deemed necessary. A New York Criminal Lawyer also said the court also ruled that the director of the mental health services admit the defendant for hospitalization and treatment without the occurrence of civil commitment proceedings.

Published on: January 19, 2013

Court Discusses Dual Sovereignties Doctrine

by Stephen Bilkis

On the morning of December 15, 1971 two men and a woman were observed entering the New York residence of the husband and his wife carrying empty shopping bags or, in Grant’s case, with a collapse valise. When they departed, the three left with their once empty receptacles, filled. They were then followed to different distribution points where they were arrested. Searches conducted incident to the arrests revealed that they each had over one pound of heroin possession. A subsequent search of the couple’s residence produced large amounts of narcotics, money, weapons and drug packaging materials.

On December 28, 1971 the three were indicted by the Bronx County Grand Jury which, by five indictments, charged the three and the wife with criminal law violation through crack possession. The indictments also charged one of the three complainants with two counts of attempted murder, two counts of reckless endangerment and possession of a weapon; and the complainant couple with two counts each of possession of weapon and criminally using drug paraphernalia.

Thereafter, a New York Criminal Lawyer said in November, 1972 the complainants and 14 others were indicted by a Federal Grand Jury for conspiring to distribute and possess with the intent to distribute narcotic drugs. The indictment set forth 18 overt acts that the complainants allegedly committed in furtherance of the conspiracy, the last of which stated that the three together with the husband did distribute and possess with intent to distribute a total of eight and one-half (8 1/2) kilograms of heroin hydrochloride, and, in addition, did obtain $70,000 income and resources from prior heroin distributions.

Published on: January 14, 2013

Court Discusses Penal Law 70.08 Regarding Violent Felonies

by Stephen Bilkis

In this case, the Nassau Criminal Lawyer said that, defendant was convicted of robbery in the first degree, a class B violent felony under Penal Law § 70.02 (1) (a). At his sentence, the People filed information alleging that defendant was a persistent VFO having been convicted of two previous violent felonies. The People alleged that on January 7, 1985, defendant was convicted of criminal possession of a weapon in the third degree in Nassau County and sentenced to a term of incarceration of 2Â½ years. The People also alleged that on July 18, 1986, defendant was convicted of burglary in the second degree in Nassau County and sentenced to an indeterminate term of incarceration with a minimum of 4 years and a maximum of 8 years. The People further asserted that the following time periods during which defendant was incarcerated were tolled from the 10-year limitation: January 18, 1985 to April 5, 1990, and December 14, 1991 to June 9, 1994.

A New York Drug Crime Lawyer said that, the court adjudicated defendant a persistent VFO and sentenced him to an indeterminate term of incarceration of 24 years to life, in accordance with the statutory guidelines set forth in Penal Law § 70.08.

Defendant now moves to set aside his sentence pursuant to CPL 440.20 on the grounds that he was unlawfully adjudicated a persistent VFO. In his motion, defendant claims that he was unlawfully adjudicated a persistent VFO.A New York Drug Possession Lawyer said the defendant argues that his 1985 conviction cannot serve as a predicate in conjunction with his 1986 conviction because the sentence on his earlier case was not imposed until after the commission of the felony on the latter case. To support his claim, defendant attached to his motion the commitment orders submitted by the Clerk of Nassau County to the State Department of Correctional Services on both the 1985 and 1986 convictions. Indeed, the orders confirm that defendant had been sentenced on his 1985 gun crime conviction on January 7, 1985-15 months after September 8, 1983, the date he committed the gun crime which led to his subsequent burglary conviction in 1986. Furthermore, the second violent felony offender statement submitted by the Nassau County District Attorney’s office upon defendant’s sentencing in 1986 establishes that the People did not rely upon defendant’s 1985 conviction to enhance his punishment. Instead, in 1986, the People relied upon defendant’s 1981 conviction of robbery in the first degree in Bronx County to establish that defendant was a second VFO.

Published on: January 5, 2013

Defendant Claims Double Jeopardy for Drug Charges

by Stephen Bilkis

A complainant man seeks an order to prevent the justices of the Supreme Court and the district attorney from proceeding to try him on an allegation returned against him by the grand jury.

A New York Criminal Lawyer said the indictment charges the complainant and another man with various degrees of possession of a dangerous drug. The complainant is charged with first degree of possession of 16 ounces and more of heroin, fourth degree of possession of a narcotic drug with intent to sell and sixth degree of possession of a dangerous drug.

The complainant, the other man and several others were also prosecuted under a nine-count federal charges, in which the complainant was charged with counts one and two of possession with intent to distribute and distribution of one kilogram of heroin (heroin possession), attempt to distribute half a kilogram of heroin and conspiracy to distribute and to possess with intent to distribute quantities of heroin.

Published on: January 4, 2013

Court Discusses Double Jeopardy in Drug Possession Case

by Stephen Bilkis

The indictment charges against defendant with others with various degrees of possession of a dangerous drug are as follows:

Count 1: 1st degree–possession of 16 ounces and more of heroin;

Count 2: 4th degree–possession of a narcotic drug (heroin) with intent to sell; and

Published on: January 2, 2013

Court Discusses Conspiracy to Sell Drugs Charges

by Stephen Bilkis

This involves a case where the court ruled that the indictment against the defendant be reinstated.

During 1981 police officers conducted a large-scale investigation into the distribution of narcotics in New York, Queens and Bronx counties. A New York Criminal Lawyer said the investigation, which included a number of drug purchases by an undercover officer and involved the extensive use of electronic eavesdropping and surveillance, led to seven indictments charging the 12 subjects of the investigation, among them defendant, with conspiracies to sell narcotics, and with the sale and possession of heroin and cocaine. The charges against defendant were based on his alleged participation in heroin sales to the undercover officer on June 26, August 19, and September 11, 1981, and an attempted heroin sale on September 24, 1981. As a result defendant were charged in one of the indictments with one count of conspiracy in the second degree for their activities from May 28, 1981 to September 22, 1981. They were also charged with two counts of criminal sale of a controlled substance (drug possession) in the second degree and four counts of criminal possession of a controlled substance in the third degree for the August 19 and September 11 sales.

Trial Term dismissed the indictment against defendant, finding that that evidence was insufficient as to him to make out a prima facie case for either the sales or the conspiracy.

Published on: January 1, 2013

Confidential Informants Can Establish Probable Cause

by Stephen Bilkis

The April 25, 1975 affidavit of the State Police Investigator in support of the application for the warrant to search the house and automobile of the defendants contains five distinct elements which in some way indicate that defendants were keeping illicit drugs in or about their house. A New York Criminal Lawyer said these elements are of two sorts: communications from confidential informants and observations by named police officers. The informant data can be summarized as follows:

Informant # 1 “who has provided information which led to the arrest and conviction of two subjects for Murder, the arrest of one subject and the seizure of a quantity of controlled substances (drug possession) advised me approximately six months ago that a guy named M, living on East Lane, Burden Lake * * * with his girlfriend, C, was selling and packaging heroin at his residence on East Lane.”

Informant # 2 told me that “he overheard a conversation between a subject known to him, who let him hear what was being said and CN. In the conversation, CN discusses a quantity of heroin which was stolen from her residence on Burden Lake. He also overheard MS discuss the loss of 2 grams worth $200.00 apiece.”

Published on: December 31, 2012

Defendant Contends Right to Fair Trial Violated

by Stephen Bilkis

An accused man was questioned at length by his attorney to establish that he no longer used heroin and was involved in a methadone program. A New York Criminal Lawyer said his direct testimony was interlaced with differing references to his having been off heroin for at least one month, 6 weeks and two months, the clear implication being that he had no need for heroin possession or intent to distribute and sell it. He testified that he was en route from his home to his methadone clinic and, in doing so, took a most circuitous route, passing along 112th Street, which he knew was a shooting gallery. His attorney again presented the issue of his route by asking several questions as to the indirect route taken, which was never satisfactorily explained except that the accused man stated he sought to avoid encountering members of a motorcycle club whose location he never defined in relation to the path he took or the one he avoided.

A New York Criminal Lawyer said on cross-examination of the accused man, the prosecutor explored the very areas which had been inquired into on direct and, for the most part, the extent of the cross-examination resulted from the vague, imprecise and inconsistent responses by the accused man. Thus, when questioned as to whether he had in fact stopped using heroin before joining the methadone program, he responded that he was trying to stop then. It was followed with the response that he wasn’t using it at that time. While, on direct examination, he claimed to have been off heroin for varying periods of time, on cross-examination he admitted he was not totally straight at the time of his arrest but was working on it. Although the dissent finds fault in the questions pertaining to the methadone program, it was the accused man who first injected the issue when he endeavored to show that he was off heroin and, accordingly, had no need to shoot up. Under the circumstances, inasmuch as the issues were explored extensively by the accused man on his direct examination, it would be unfair and unbalanced to preclude the prosecution from legitimate cross-examination. Contrary to the view expressed by the dissent, Mental Hygiene Law was intended to apply as a shield, not as a sword and, based on record, does not operate to preclude questions on the very subject introduced by the accused.

On this record, the court finds that there was no denial of the accused man’s right to a fair trial. In view of the extent of the accused man’s direct examination, it would be palpably unfair and unreasonable to limit the prosecution on the very significant issues raised to establish the defense that defendant was off the habit. The accused man opened the door by admitting that although he had been addicted to heroin since he was 19 years of age and had used drugs for twenty-years but he discontinued such use since he attended the methadone program months prior to his arrest. It is obvious that his defense was keyed to the fact that he had no need to deal in or get involved in a case of heroin possession since the financial demands of the habit had been eliminated by his being a part of the methadone program and that his being by coincidence on 112th Street, the shooting gallery, was to avoid some unsavory characters whose location he was unable to pinpoint. Moreover, a New York Drug Crime Lawyer said the proof of guilt was overwhelming, the accused man, having been found with heroin possession of 24 glassine envelopes after being observed for a period of time by an officer who had monitored his actions by use of power binoculars from a second story window. Under the circumstances, considering all of the evidence, the unquestioned overwhelming proof of guilt and the absence of any objection to preserve the issue for review on appeal, at most there was harmless error.