Drug Possesion

Published on: January 23, 2013

Defendant Claims Insufficiency of Evidence in Heroin Possession Case

by Stephen Bilkis

Defendant was charged with a drug crime, particularly, for possession of heroin and filed an appeal before the court for his conviction. Appellant averred that there was insufficiency of evidence, admissibility of the testimony pertaining to other drugs than those of which he was indicted and trial judge’s charge to the jury.

A New York Criminal Lawyer said the facts of the case were, the postal inspectors found a package from Thailand containing 13 grams of heroin addressed to the resident of the accused. The postal authorities managed an organized delivery of the package to the defendant’s residence. Upon receipt of the package, the officials waited for about twenty to thirty minutes before they entered the apartment of the appellant equipped with a valid search warrant. They saw the drug felon inside his bedroom with 6.5 grams of heroin on top of a table near him. The police detectives made further search within the premises and found thirty packets of heroin, also known as “dime bags,” and butts of marijuana cigarettes inside a drawer of a dresser at another bedroom at the opposite side of the defendant’s room.

The theory of the government was that the accused intended to distribute the heroin upon discovery of the “dime bags” in his apartment. It was a common practice that heroin found in such kind of packages are fitting for the drug crime of street distribution, which is an indication that the appellant was a drug dealer of heroin and the purpose of the delivery of the heroin package was for its distribution. A New York Drug Crime Lawyer said the accused had a different theory, which he presented before the jury. He contended that the “dime bags” did not contain any heroin from the package and that the entire 13-gram heroin he received were those that was found on top of the table in front of him that was found by the police officers. He alleged that when he heard the law enforcers coming inside his room, he had thrown some of the heroin into a corner of a closet.

Published on: January 23, 2013

Husband Accused of Lying Under Oath

by Stephen Bilkis

The complainant husband was granted an uncontested divorce from defendant-wife on the ground of constructive abandonment. This cause of action, often referred to as sexual abandonment, is perhaps the ground most widely used in proceedings where both sides agree to the divorce. A New York Criminal Lawyer said that as part of pleading his claim of sexual abandonment, the husband had to swear to the fact that he and his wife did not have sexual relations for over a year. The wife is attempting to use that statement to prevent her husband from seeking to establish that a child born during the course of the marriage, but conceived well after the date on which the parties allegedly stopped having sex, is actually his son.

The husband contends that irrespective of what he stated in the divorce pleadings, the child in question is in fact his child. He moves for an order directing that genetic marker testing be done so as to conclusively determine paternity. Upon such determination, he further seeks a declaration of paternity and the amendment of the divorce judgment to reflect that his son is the child of the marriage.

The wife opposes her husband’s motion in all regards. She points out that her husband, in his verified complaint for divorce, alleged that from August 1, 2006, onward she refused to have sexual relations with him. Thus, based on his own sworn statements, the wife contends that the child, who was not born until March 19, 2008, cannot possibly be his. A New York Criminal Lawyer said the wife further submits that if her husband is taking the position that the child is his child, this means that the sworn statements in his verified complaint concerning the lack of sexual relations must be untrue. With this regard, the wife cross moved for and order finding that her husband has committed perjury in the second degree.

Published on: January 22, 2013

Defendant Charged with Grand Larceny and Petit Larceny Challenges Sufficiency of Evidence

by Stephen Bilkis

A man, who was found guilty of grand larceny and petit larceny, filed an appeal and urges the insufficiency of the evidence to support his convictions. But, the court finds the evidence sufficient to support the charges. The court therefore affirmed the conviction and sentence.

Based on records, a New York Criminal Lawyer said the court affirmed the conviction of breaking and entering, but it appears that the state failed to sufficiently prove intent to commit a felony and the record will only support a conviction of breaking and entering with intent to commit a misdemeanor. In addition, a misdemeanor would be reviewable in the circuit court. But, the trial judge had the power to make such settlement as to the lesser included offense.

The man points out the charges of petit larceny. However, the body of the information clearly charged a felony by alleging the felonious taking of personal property of a value in excess of $100.00 and the court announced that it found the man is guilty as charged. The court also found no error in the finding of guilt. But as it appears that the sentence was joined with that of the breaking and entering with intent to commit a felony. A New York Criminal Lawyer said the court likewise vacate the sentence and return the matter to the trial court for an appropriate sentence in accordance with the law of the state as made and provided for petit larceny. As a result, the matter is returned to the trial court for further proceedings.

Published on: January 21, 2013

Defendant Contends Constructive Possession Could Not be Established in Drug Case

by Stephen Bilkis

An undercover officer observed the accused hand a third party several glassines of heroin in exchange for money. When the officer solicited two glassines, the accused insisted that the alleged buyer first snort some heroin and, upon the officer refusing, the accused walked away without consummating that sale. When the backup team approached the accused, he ran, discarding 20 glassines of heroin during his flight. A New York Criminal Lawyer said this gave rise to charging the accused with criminal possession of a controlled substance in the third degree. When the accused was apprehended, he had an additional three glassines of heroin on his person and two $20 bills in his pocket. This gave rise to charging the accused with criminal sale of a controlled substance in the third degree. Eight glassines of heroin were recovered from the accused man’s underwear at the precinct. The accused testified that he was an addict who snorted several bags of heroin daily, that he carried the drugs only for his own use, that he had purchased, rather than sold, the heroin, and that he had resisted the advances of a stranger who turned out to be the undercover officer. The evidence sufficiently proves the charges. However, procedural concerns require a reversal of the criminal possession conviction.

A New York Criminal Lawyer said after summations and submissions of the final charges to the jury, the counsel requested submission of criminal possession of a controlled substance in the seventh degree as a lesser included drug offense of the third-degree possessory offense. The court refused, not on any statutory basis, but because the timing of the request contravened the court’s policy. The record supports the defense counsel’s representation that, in fact, he had previously indicated to the court’s Law Secretary that the request might be made, but that counsel would have to hear the accused man’s testimony first. The complainant concedes that if the request had been timely made, the accused would have been entitled to the charge. Although it is manifestly preferable that both counsel know all the charges to be submitted to the jury before summations, the statute appears to authorize such request to be made by counsel at any time prior to the submission of the case to the jury, and the Court of Appeals has characterized this as a general rule, which also reflects the practice in the Second Department. In the present case, there is no indication that the timing of the request manifested an abusive practice, or that granting it would have prejudiced the complainant. Under the circumstances of the case, the charge should have been given to the jury. In reversing and remanding this charge for trial, the remaining charge of which the accused was convicted remains unaffected, insofar as it depended on a different item of evidence.

In one of the heroin related cases, as a result of his alleged sale of heroin to a confidential informant in two controlled buys and his heroin possession at the time of his arrest for those sales while on his way to a third such transaction, the accused was charged by indictment with, among other things, five counts of criminal sale of a controlled substance in the third degree. Following a hearing, a New York Drug Possession Lawyer said the County Court denied the accused man’s pretrial motion to suppress all evidence resulting from his warrantless arrest, finding that the police had probable cause to arrest him. The accused was then convicted as charged following a jury trial. The County Court sentenced him as a second felony offender to five concurrent prison terms of 11 to 22 years and he now appeals.

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.