Drug Possesion

Published on: March 5, 2013

Defendant Charged with Criminal Facilitation in the 4th Degree

by Stephen Bilkis

An appeal was made by the accused man from a judgment of the County Supreme Court rendered on October 26, 1983, convicting him of four counts of criminal facilitation in the fourth degree, upon a jury verdict, and the imposing sentence. A New York Criminal Lawyer said the judgment was affirmed and the matter was remitted to the County Supreme Court for further proceedings pursuant to the Criminal Procedure Law.

Pursuant to the defense counsel’s request, the trial court charged criminal facilitation in the fourth degree as a lesser included offense of grand larceny in the second degree and attempted grand larceny in the second degree. The accused man was ultimately found guilty of four counts of criminal facilitation in the fourth degree and acquitted of all other charges. The accused argues, as he did on his motion to set aside the verdict, that criminal facilitation in the fourth degree is not a lesser included offense of grand larceny in the second degree and attempted grand larceny in the second degree and that the defect in erroneously charging such a request is non-waivable inasmuch as it goes to the court’s subject matter jurisdiction. A New York Criminal Lawyer said criminal Term resolved both issues against the accused man. Since the accused man effectively waived any error in the submission of the charge of criminal facilitation in the fourth degree to the jury, the Appellate Court affirms.

A comparative evaluation of the two operative statutes, grand larceny in the second degree and criminal facilitation in the fourth degree reveals that the latter is not a lesser included offense of the former because it is theoretically possible for a person to commit the crime of grand larceny in the second degree without intending to aid anyone else in the commission of a felony.

Published on: March 5, 2013

Defendant Claims Drugs Weren’t His

by Stephen Bilkis

A New York Criminal Lawyer said the defendant is appealing two orders that were made by the County Circuit Court. The first order that is being appealed denied his motion for post-conviction relief. The second order revoked his probation and imposed a prison sentence.

The defendant raises three main points on appeal. First, the court erred in denying his motion for relief because he was on probation and was not a prisoner in custody under the sentence when he made the motion. Second, the evidence was not sufficient in the case to support the fact that he had constructive possession of the legal illicit drugs. Finally, he argues that the court erred in his sentencing by not following sentencing guidelines.

Case Background

Published on: March 3, 2013

Juvenile is Charged with Cocaine and Marijuana Possession

by Stephen Bilkis

A juvenile is appealing adjudications made against him that found him guilty of possession of cocaine and marijuana. A New York Criminal Lawyer said he states that the trial court erred when they denied his motion for judgment of acquittal when the state had failed to present substantial evidence to prove constructive possession of the contraband.

Adjudicatory Hearing

During the adjudicatory hearing there was testimony that revealed that the defendant along with a friend asked another person for a ride to a woman’s house to pick up some items. The defendant rode in the back of the individual’s truck. The defendant and his friend got out of the truck at the house. The young men did not know that the house was under surveillance.

Published on: March 1, 2013

Defendant Claims an Error was Made in Sentencing

by Stephen Bilkis

The petitioner is a federal prisoner who has petitioned to have an error of law in the calculation of his sentenced based on a Supreme Court Decision that interpreted sentence guidelines. This decision was made eleven years after the defendant was sentenced.

A New York Criminal Lawyer said the issue before the court is whether the savings clause permits a federal prisoner to challenge his sentence in a habeas corpus petition when he could not raise that challenge in motion because of the bar against successive motions.

Petitioner’s Argument

Published on: March 1, 2013

Defendant Found Breaking into Vehicle with Screwdriver

by Stephen Bilkis

A man, the herein defendant, was observed by a police officer breaking into a motor vehicle using a screwdriver. He was then arrested and indicted. A New York Criminal Lawyer said the indictment originally charged him with, inter alia, attempted grand larceny in the second degree based on an allegation that he attempted to steal property, an automobile, with a value of more than $1,500. However, this charge was incorrect, inasmuch as the attempted grand larceny in the second degree, pursuant to Penal Law, requires an allegation that the property exceeded $50,000 in value. Thus, shortly before trial commenced, the prosecutor moved, without any objection by defense counsel, to amend the indictment to charge attempted grand larceny in the third degree on the basis that the defendant attempted to steal property valued in excess of $3,000. The proposed amendment was legally correct and conformed to the evidence and the instructions presented to the Grand Jury. However, although the court indicated that it would grant the motion, only the accusatory portion of the count was amended from attempted grand larceny in the second degree to attempted grand larceny in the third degree; the factual portion alleging that the value of the subject property exceeded $ 1,500 remained unchanged, and therefore, the count was still incorrect. Thereafter, on 8 August 1995, the Supreme Court of Queens County rendered judgment convicting him of attempted grand larceny in the third degree, criminal mischief in the third degree, and possession of burglar’s tools, upon a jury verdict, and imposing sentence.

Consequently, the defendant files an appeal from the said decision.

The Ruling of the Court:

Published on: February 28, 2013

Court Discusses Constructive Possession in Drug Case

by Stephen Bilkis

A New York Drug Crime Lawyer said the defendant was found not guilty on a charge of possession of cocaine with the intent to sell, but was convicted on the other count made against him of possession of marijuana. The defendant argues that the court made an error by not granting his motion for acquittal as the evidence for the charge was insufficient.

Case Discussion

The conviction of the defendant was for constructive possession and not actual possession. The only evidence that was submitted in regard to the charge of possession of marijuana was that the defendant was alone in the car at the time he was arrested and a later search of the car revealed a marijuana cigarette. A New York Drug Possession Lawyer said the officer who conducted the search did not remember where it was found and did not note in the inventory of the car where the joint was found.

Published on: February 28, 2013

Defendant Questions Court Jurisdiction

by Stephen Bilkis

The Facts of the Case:

Defendants stole people’s identities, committed bank fraud when opened fraudulent bank accounts in the victims’ names, and transferred money from the victims’ legitimate bank accounts to the fraudulent ones they controlled from an extensive enterprise which they oversaw. Thus, a New York Criminal Lawyer said they were indicted, among other things, eight incidents of grand larceny in the second and third degrees, based upon the transfer of funds from five separate legitimate bank accounts into five separate fraudulent accounts, after which the stolen funds were withdrawn; three instances of grand larceny in the second degree, based upon the deposit of stolen checks issued to an advertising firm into a fraudulent account defendants had opened in the firm’s name in order to steal the funds. Count one of the indictment charged defendants with grand larceny in the first degree which requires that the stolen property’s value exceed $1 million. Thereafter, on 2 November 2006, the Supreme Court of New York County rendered judgment convicting each defendant, after a jury trial, of grand larceny in the first degree, grand larceny in the second degree (four counts), grand larceny in the third degree (seven counts), forgery in the second degree (seven counts), criminal possession of a forged instrument in the second degree (eight counts), identity theft in the first degree (six counts) and scheme to defraud in the first degree, and sentencing defendant-one to an aggregate term of 10 to 25 years and sentencing defendant-two to an aggregate term of 12½ to 25 years.

Defendants questioned the court’s decision and claim that their convictions for first degree grand larceny should be vacated because the prosecution achieved the statutory monetary threshold by improperly aggregating the amounts taken from five individuals on eight different occasions and one advertising firm on three different occasions. A New York Criminal Lawyer said the People oppose defendants’ contention and argue that the aggregation was proper because defendants’ thefts were made pursuant to a single intent and one general fraudulent plan.

Published on: February 27, 2013

Court Maintains that Grand Larceny Must be Proven Beyond a Reasonable Doubt

by Stephen Bilkis

The Facts of the Case:

A New York Criminal Lawyer said on 16 May 1984, defendant was convicted by the County Court of Nassau County of grand larceny in the second degree (three counts), grand larceny in the third degree, petit larceny, commercial bribing or bribery in the first degree and scheme to defraud in the first degree or bank fraud, upon jury verdicts, and attempted grand larceny in the second degree (three counts), upon his pleas of guilty.

Defendant then filed an appeal from the aforesaid six (6) judgments of criminal convictions and contends that the Attorney-General was not properly authorized to conduct Grand Jury proceedings in accordance with Executive, and that the additional Grand Jury which returned the indictments against him was not impaneled in accordance with the rules of the court.

Published on: February 26, 2013

Couple Charged with Grand Larceny in Bad Check Scheme

by Stephen Bilkis

A husband and wife were accused of having issued checks that bounced. A New York Drug Crime Lawyer said there were nineteen checks issued altogether and the value of each check amount to no less than twenty dollars and no more than thirty dollars. The checks were issued as payment of items bought at nine different stores and business establishments.

The public prosecutor brought these facts to the Grand Jury and asked the Grand Jury to hand down an indictment against the spouses for grand larceny. The grand larceny issued an indictment for grand larceny. Before arraignment, the accused couple asked the trial court to order the district attorney to file a bill of particulars to state the facts on which the charges are based.

When the district attorney had complied and had submitted the bill of particulars, the couple moved for the dismissal of the charges. The couple argues that grand larceny cannot be charged against them as each check represents a separate crime. A New York Drug Possession Lawyer said the checks were issued not to one person and they were not negotiated at any one establishment. Thus, the couple contends, no crime of grand larceny was committed because none of the checks issued amounted to $250 dollars although the aggregate value of all the checks, if added together, amounts to $425. The couple maintains that the nineteen checks cannot be considered as a whole or as an aggregate sum.

Published on: February 26, 2013

Court Finds Scheme to Defraud Regarding DEC Permits

by Stephen Bilkis

A New York Criminal Lawyer said the counts charge the defendants in conjunction with payments made by several corporation/parties. It is the theory of the prosecution that criminal liability attached to the actions of the defendants because the money which the defendants obtained as a result of the transactions involving several corporation / parties was paid as a result of either trick or device, false promise, or some combination of both.

In support of this contention the District Attorney adduced evidence before the grand jury to the effect that the defendants either acting directly or through others, made both oral and written presentations to the effect that their new process made “tremendous steps” toward reducing the impact of underground tank discharges so as to protect “our land, air and water” and to promote their services as “today’s solution to yesterday’s pollution”.

Upon examination of the record the court ruled that these generators only sought a disposition of their P.C.S. which would absolve them from liability both in terms of their obligation to remove the material from their premises pursuant to E.C.L. Article 17 Title 10, (CERCLA) 42 U.S.C. 9601 et seq. and other such similar laws and at the same time avoid the continuing sanctions pursuant to these laws which could follow if the material, having been taken off the sites owned or controlled by the generators, was improperly re-introduced into the waste stream.